California's Citizens United proposition started with a chat at Starbucks
When she sat down at a Starbucks in Torrance a few years ago, Michele Sutter was desperately looking for a California legislator to sponsor a bill regarded by many as a nonstarter — a proposition instructing the state’s congressional delegation to change the U.S. Constitution.
Voters had just passed a similar measure in Los Angeles with 76% of the vote, and Sutter and others at her nonprofit — Money Out, Voters In — wanted to give the entire state a say on whether the 55 Californians they send to Congress should fight to overturn the controversial 2010 Citizens United decision that has allowed money to flood American elections.
For months, Sutter had contacted any likely legislative sponsor and sat down with a half-dozen members without luck, she said. The deadline to file bills in the California Legislature was just a week or so away.
“It’s a little like shopping a screenplay,” she said, where people liked the idea but didn't want to commit.
Then, in mid-February, she and some local Democratic Party officials had coffee with her state senator at the Starbucks, and he committed immediately to being the sponsor.
“I was fairly shocked, frankly,” she said.
It hasn’t been easy. The bill has made it through the California Legislature twice, been debated before the California Supreme Court, and then Gov. Jerry Brown begrudgingly allowed it to become law. Starting in a few weeks, Californians will get a say when they cast a vote on Proposition 59.
The proposal merely instructs the congressional delegation to work to overturn Citizens United. It is an advisory measure that does not change law.
The state senator whom Sutter met with, now U.S. Rep. Ted Lieu, had supported campaign finance reform for years.
“My view has always been that the perception of money in politics is corrosive to democracy and if you have too much money in politics, not only do you have a perception issue, you have actual corrosive issues happening,” Lieu said in a recent interview in his Capitol Hill office.
Getting the bill through the Legislature was tricky, he said.
The California Legislature had already passed a resolution in 2012 urging Congress to send states a constitutional amendment about Citizens United, and Sutter said a lot of legislators didn't see a reason for voters to do it, too.
When the Supreme Court struck down the limits on how much an individual could contribute per election in its 2014 McCutcheon vs. FEC decision, Sutter’s group began making the case that Congress had ignored Sacramento’s instruction.
Sutter’s group and other money-in-politics grassroots organizations peppered lawmakers with faxes, letters and emails from constituents. They visited their Sacramento offices by the hundreds.
“When you make a noise, you can have an impact,” she said. “The people have a lot more capacity to impact behavior than we give ourselves credit for.”
The bill passed the Senate and Assembly easily and Brown allowed it to become law without his signature, saying he disagreed with the Citizens United decision, “but we should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect.”
But before the proposition made it onto the November 2014 ballot, an anti-tax group challenged whether the Legislature had the authority to put such “advisory” questions on the ballot. The group called it an "illegitimate exercise of legislative power.” Opponents have also called it an attempt to turn out Democratic Party voters.
The state Supreme Court kept the measure off the ballot that year and ruled in January that lawmakers do have the authority to ask the public what to do through a proposition, but said the California Senate and Assembly would have to start over.
The bill was brought back to the state Legislature by Sen. Ben Allen (D-Santa Monica), who won Lieu’s district when Lieu was elected to Congress in 2014. Allen is the chairman of the Senate Elections and Constitutional Amendments Committee.
“I’m someone who suffered through the madness of a very expensive race myself and got a first hand look at the role of money,” Allen said.
The bill passed easily in a matter of weeks, and Brown again allowed the new bill to become law without his signature in June, saying it clutters the ballot with an unenforceable measure. Allen said he understands the criticism.
“This is the best I can do as a state legislator. This is a tangible way for a voter to weigh in and make their concerns known,” Allen said. “I get the critique, but what else can a legislator or voter do in this area but weigh in, but push?”
Voters once frequently used such “voter instruction” measures to tell their members of Congress what to do, but Californians haven’t used it to tell their representatives and senators to change the U.S. Constitution in 124 years.
California led the effort to have citizens elect their U.S. senators, rather than have them picked by state lawmakers. When legislators referred a proposition in 1892 asking if the change should be made, 93% of voters said yes, according to figures from the California State Archives.
Several states followed California’s lead and put the issue before their voters and, eventually, Congress got the hint. Nearly 17 years later, the 17th Amendment passed, changing how senators are picked.
More than half of the state’s congressional delegation already co-sponsors legislation that would lead to an amendment to address Citizens United, but none of the bills have even gotten a committee hearing.
Lieu, who called Citizens United “a stupid decision,” said it will take public outcry before Congress acts.
“If you look back at how constitutional amendments happen, they don’t happen because Congress wakes up one day and says “gee, let’s do a constitutional amendment.” What happens is you have agitation across America, you have grassroots agitation, you have states saying they want change,” Lieu said.