Prop 59: A Quasi-Referendum on the First Amendment

Prop 59: A Quasi-Referendum on the First Amendment

Citizens United vs. Federal Election Commission was a 2010 case in which the Supreme Court ruled that political spending is protected by the First Amendment and that the federal government cannot impose spending restrictions on corporations, unions, and other organizations that want to persuade the voting public by financially supporting political candidates (but independently of the candidates’ campaign). The past 6 years have witnessed outrage from many liberals, who mainly denounce the “buying of elections” by “wealthy special interests.” This criticism has been accentuated by Bernie Sanders (I-VT) and Democratic nominee Hillary Clinton, who in her acceptance speech during the Democratic National Convention proclaimed that “we’ll pass a constitutional amendment to overturn Citizens United!” If liberals all over the country were excited to hear that, those in California should be even more excited because of their chance to weigh in on Prop 59.

Prop 59 gives California voters an opportunity to make their voices heard with respect to the Citizens United decision. They are asked the following:

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...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?

One of the most important aspects to initially note is that while Prop 59 may sound legally binding, it is far from it. Prop 59 is just a question—more specifically, an advisory measure—which means that if approved, it would not have any practical legal force behind it. Its passage would merely voice the opinion of the majority of the state’s electorate. However, California is of course the most populous state in the US, and a resounding yes vote would send a clear message to the entire country and could provide national momentum for overturning Citizens United. Unfortunately, this scenario would be alarming because overturning this decision, however contentious it may be, would dangerously tamper with the beloved First Amendment right of freedom of speech that Americans have enjoyed for the past 225 years.

Even though the Citizens United decision has been controversial, it just affirmed what has been true for more than two centuries: the federal government cannot be in the business of “abridging the freedom of speech.” The controversy around the decision is of course not directed at whether individual Americans have freedom of speech but at whether wealthy and influential corporations have this freedom and can exercise it through political spending. Quite simply, corporations—whether big or small, rich or poor—are comprised of human beings who work together, and Americans do not cease to have First Amendment rights once they are collectively involved in the work of a business. It’s clear that restricting the ability of any corporation to publicly state its views and get its message to a wide audience, which involves money, would commence the gradual encroachment on First Amendment rights. This is extremely troubling.

Referring back to Prop 59, a yes vote would request California lawmakers in Sacramento and Washington “to make clear that corporations should not have the same constitutional rights as human beings.” While liberals may be salivating at the prospects of curtailing the political activities of the wealthy Koch brothers and their conservative organizations, this section of Prop 59 would have serious ramifications for all the ubiquitous corporations that Americans come across on a regular, if not daily, basis. For example, what would happen to the companies across the country that own major newspapers? According to a recent article by AEI fellow Peter J. Wallison, if corporations do not have First Amendment rights, the editorial board of The New York Times Company’s namesake newspaper could lose its ability to publish opinions that support one candidate and denounce another (which it has done during this election season). Furthermore, Facebook and Twitter, which are “corporate vehicles for the expression of opinions about candidates by others,” could also be negatively affected by an amendment that contains the language of Prop 59. This would clearly not sit well with Americans, but such an amendment would affect the First Amendment rights of all corporations, not just those associated with the “corrupt” and “selfish” Koch brothers and other wealthy conservative donors whom the left loves to rail against.

Speaking of wealth, the claims that the rich are “buying elections” with their deep pockets are exaggerated and do not reflect a practical view of American democracy. Sanders’ campaign website attacks the “disastrous” Citizens United decision, lamenting that it gives the wealthiest Americans “the opportunity to purchase the US Government, the White House, the US Senate, the US House, Governors’ seats, legislatures, and State judicial branches as well.” If electoral success were directly proportional to the amount of money used in most cases, the outcome of recent elections would have been profoundly different. In 2012, the left-leaning Huffington Post published an article whose headline explicitly stated that super PACs “didn’t buy the 2012 election,” which was the first presidential election since the Citizens United decision. Independent conservative groups spent more than $700 million—70 percent of all the reported independent political expenditures—and 2012 Republican nominee Mitt Romney’s allies outspent President Barack Obama’s by $260 million; the result was a Democratic White House, a Democratic Senate, and a Republican House—the exact same scenario as before the election. And more recently, no one can forget Jeb Bush’s failure of a 2016 presidential run, despite nearly $100 million in super PAC money; during the Republican primaries, Donald Trump barely spent a fraction of that and then became the nominee. Maybe the lesson to take out of these elections is that wealthy donors do not have the power to decisively affect the election results in their favor by changing the minds of the overwhelming majority of Americans. There is no doubt in the mind of many Americans that there needs to be reforms to the campaign finance system, especially in the realm of transparency, but investing political capital in limiting the constitutional rights of Americans who collectively work together in a corporation and in appointing Supreme Court justices who will overturn the Citizens United decision is misguided and dangerous.

The 2016 election in California will give voters the opportunity to weigh in on Prop 59, which is a non-binding advisory measure asking them if the state’s elected officials should do everything in their power to overturn the Citizens United decision, among other things. While this vote is merely symbolic, it could turn into action down the road with enough national momentum. However, overturning this decision would be nothing short of disastrous for constitutional freedoms. Corporations—no matter how rich or poor they are—comprise individuals whose rights do not suddenly vanish when they are working collectively as a team for a common goal. And as recent elections have shown, well-funded corporations cannot guarantee that they will get their way in future elections. A yes vote on Prop 59 automatically affirms all the left’s talking points regarding campaign finance reform without concern for the Constitution and the political realities on the ground. A no vote does not turn a blind eye to necessary reforms that should be pursued; it instead recognizes something more important that’s at stake—the preservation of the First Amendment as an avenue to freely express one’s opinions (which could end up costing lots of money).

I recommend voting no on Prop 59.

Follow this author on Twitter: @ElliserSilla

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