Let Californians instruct their elected representatives: Guest commentary
Do Californians have the right to “instruct” their elected representatives through the ballot?
This question is currently before the California Supreme Court, but the story goes back five years. In 2010, the U.S. Supreme Court’s Citizens United v. FEC decision struck down bans on corporate political spending and opened the floodgates to unlimited corporate political money. That hasn’t sat well with many Californians. And this past November, Proposition 49 was supposed to ask the voters whether Congress should propose, and the California legislature should ratify, an amendment to the U.S. Constitution that would overturn Citizens United, allow the public to put limits on political spending, and make clear that the Constitution protects the rights of real people, not corporations.
But the voters never got the chance to answer that question, because in August, the California Supreme Court ordered the state to pull Proposition 49 from the ballot. According to the court’s preliminary ruling in the case HJTA v. Bowen, it is uncertain whether the state constitution allows “advisory” ballot measures.
We disagree. And we’ve filed both a letter and an amicus brief in defense of placing Proposition 49 back on the ballot. A representative democracy is a two-way street, and a provision in the California Constitution gives the people the right to “instruct their representatives.”
It is not enough for a legislator to speak to and for the people once he or she is elected. The people must have access to diverse tools in order to express their political sentiments. In the 21st century, that includes everything from social media, postcards, press, and many other outlets right up to the ballot box.
Since California’s founding, our population has dramatically grown in size, while our representatives have essentially remained the same in number. As a result, these communication tools are more important now than ever before in ensuring that elected officials can accurately carry out their duties as public servants.
Five years ago, Citizens United radically altered our state and federal elections. So much so that the California Legislature concluded that their voters should be able to weigh in on these changes.
The weight of a ballot question is much greater than a letter, petition or legislative resolution. Ballot advisory measures validate the representative democracy that America considers itself to be. It allows people to both collectively and independently take a stand on an issue by heading to the polls — the ultimate expression of civic participation. And elected officials ought to have that feedback from their constituents.
Some people have argued that the Legislature should field a Gallup poll if they are interested to know how people feel about this issue. But a poll is not the same thing as a vote — otherwise we wouldn’t bother holding elections at all, we’d just take polls. Voting on a question is a formal democratic mechanism for expressing the will of the people. Polls can also be unreliable. Just ask former congressional Majority Leader Eric Cantor, who had a 35 point lead according to one poll, but lost his re-election.
This case is important not only in California, but also in other states that have similar constitutional provisions that allow the people to instruct their representatives. There is growing support for a constitutional amendment to overturn the Citizens United ruling, which will soon become impossible to ignore. But in order to be able to communicate this demand to elected officials, it is crucial that “we the people” get to express the popular will through the ballot box.
This type of “instruction,” along with other mechanisms of direct democracy, is particularly important in the constitutional amendment process. So far, 16 states, more than 600 cities and towns and more than 200 members of Congress have joined this call for a 28th Amendment. The process of passing a constitutional amendment is long, and deserves great deliberation. Like earlier amendments, grassroots movements — such as the voting rights movement — and local activities in various states have been crucial to influencing congressional decisions. Californians want to send a strong message to the Legislature, Congress, and the country about this amendment. Proposition 49 is the most powerful means of achieving that goal, and it has the potential to set a precedent for other states that also seek similar ballot measures.
The stakes could not be higher. It’s about reclaiming our democracy from corporations and the ultra-wealthy. Americans have the right to communicate with their legislatures on the movement to overturn Citizens United, and in California, the people have the right to do that through the ballot box itself.