Are “Advisory” Measures (Like Proposition 49) Permitted on the California Ballot?

Posted in: Election Law

A few months ago, I wrote about an effort by the California legislature to undo an unwise (but duly enacted) voter initiative involving immigration policy. I argued that although removing the initiative’s provisions from the books would certainly be a good thing, the legislature lacked the power to effect repeal on its own; respect for the initiative process requires that the people themselves formally weigh in on any proposed repeal. In the space below, I discuss another effort, albeit this time via the judiciary rather than the legislature, to prevent the people from formally weighing in on another hot-button issue: campaign finance reform.

Background and Content of SB 1272 (Which Attempted to Place Proposition 49 on the Ballot)

In July, both houses of the California legislature enacted a bill (SB 1272) that proposed to place an “advisory” question before the California voters in this November’s election. SB 1272 submits the following question (designated by the California Secretary of State as Proposition 49) to the California electorate for its input:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, 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 the rights protected by the United States Constitution are rights of natural persons only?

The Howard Jarvis Taxpayers Association and its president Jon Coupal (crusaders for lower taxes in California who have made extensive use of the initiative process for decades) filed a petition in state court seeking to block Proposition 49 from appearing on the November ballot. (The Secretary of State has been in the process over the last few weeks of finalizing the ballots that are being printed so as to be usable in November.) The petitioners argue that the legislature exceeded its powers in trying to place Proposition 49 on the ballot, since, they say, the measure “enacts no law” or “statute,” but instead is purely advisory. In a surprise to some political observers, on August 11 the California Supreme Court, by a 5-1 vote (the court is temporarily down one member since Justice Kennard’s retirement last spring), decided to block the measure from the ballot, at least for now. (Chief Justice Cantil-Sakauye was the lone dissenter and, as I explain below, she may well have had the right instinct.) The court asked for further briefing over the next month on the validity of advisory measures like Proposition 49, but decided that if Proposition 49 turns out to be permissible, it can be placed on a ballot after November. By contrast, if the measure turns out, on more reflection, to be impermissible, any damage it might create by virtue of its appearance on the November ballot would be hard to remedy.

Although the court did not conclusively decide the validity of Proposition 49, Justice Goodwin Liu wrote an opinion explaining why he believed there was a high likelihood that, after full briefing, he would find the measure to be improper. Putting aside whether trying to amend the federal Constitution to undo Citizens United is a good idea (and I have my doubts), the legality of Proposition 49 raises important and interesting questions under California law. And even though his opinion wasn’t joined by other Justices and was preliminary in the sense that he is completely free to rethink things with the benefit of additional briefing and more time, Justice Liu’s statement warrants careful attention because he is an intellectual leader on the court, and because he succinctly laid out the case against Proposition 49 that the measure’s supporters need to engage.

Justice Liu’s Reasoning in Doubting Proposition 49’s Validity

Before I turn explicitly to Justice Liu’s reasoning, I should say it’s not clear to me that the challengers are correct in saying that SB 1272 does not enact a “law” or “statute” (to the extent that anything turns on this). SB 1272 directs that public monies be spent to print text on paper ballots, and that public monies be spent to count the votes in answering the question posed on the ballot. If the legislature passed a bill directing that money be spent on a university poll/study of citizen attitudes on global warming or drug legalization, that bill would be a law, even though the university-led poll/study might not have any self-executing legal effect. Why not the same for a poll/study conducted by the legislature itself?

The legislature argued before the California Supreme Court that SB 1272 is valid whether or not it “enacts a law,” because the legislature has the power to do things “incidental and ancillary to the ultimate performance of lawmaking functions by the legislature itself.” Seems like a pretty good argument. Justice Liu deflected this suggestion, though, because Proposition SB 1272 does not relate to any potential piece of legislation, but rather to the proposal and ratification of a potential federal constitutional amendment. Justice Liu pointed out (quoting a U.S. Supreme Court opinion) that “[r]atification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word.”

I am far from sure that it makes sense to distinguish between legislation and other important actions the legislature takes with regard to the outside world matter here. In the federal context (where the legislature’s powers are even more rigorously confined), Congress is empowered to take actions that are “necessary and proper” to carrying into execution all the powers vested in the federal government, not just the legislative powers Congress enjoys.

To see why putting a great deal of weight on the legislation/ratification distinction is perilous, imagine that Proposition 49 were tweaked to include a clause asking the voters whether the California legislature should adopt laws that “test the reaches” or “limit the scope” of Citizens United. It’s hard to imagine that this difference in wording should change whether the measure should be allowed on the ballot. And, to his credit, Justice Liu, soon after he draws the distinction between amendment ratification and legislation, makes clear that his real beef with Proposition 49 is that it is purely advisory, and does no more than seek voter opinions in a formal way. In other words, his tentative position seems to be that whether or not SB 1272 is or relates to a “law” or “statute,” putting advisory measures before the voters runs afoul of the California Constitution.

But what, precisely, is wrong with the legislature formally asking for the views of the electorate? Justice Liu derives his answer from the concept of accountability. If, he says, “the legislature were to propose a statute for the voters to approve,” or ask the voters whether the legislature should adopt a statute containing specific text, and then that statute became law, the lines of accountability would be obscured. If the statute turned out to be a disaster, the legislature might evade responsibility by saying something like (my words, not Justice Liu’s): “But you voters approved (or told us to do) this, so you can’t now blame us!” By contrast, when the legislature passes a law by itself, citizens can hold it accountable, and when the citizens themselves propose and enact an initiative, they have only themselves—and not the legislature—to blame. Keeping these lines of accountability clear and clean is an important principle that Justice Liu finds implicit in the structure of the California Constitution.

Three Possible Counterarguments to Justice Liu’s Reading

On its face, this is a very plausible, creative, and elegant argument, but to my mind it suffers from some significant weaknesses—weaknesses that I hope will be explored in the full briefing for which the court asked. First, as Justice Liu acknowledges, the California Constitution explicitly allows the legislature to propose, for voter approval, state constitutional amendments and also certain statutes authorizing the issuance of bond debt. If these super-important matters can admit of a “mix and match” approach (Justice Liu’s term) that makes use of both legislative vetting and popular approval, why wouldn’t the same be true for other, less important, matters? Indeed, to the extent that accountability is an important value, wouldn’t we want to promote the greatest degree of easy accountability when the stakes are the highest? (More generally, given the cluttered and ultra-detailed nature of the California Constitution, it’s hard to draw any bright line that would explain why proposals for altering the state constitution raise fundamentally different concerns than do measures relating to possible statutes.) All of this suggests that easy accountability may not be the overriding constitutional value at work here; the U.S. Constitution and most state constitutions make consistent and convoluted use of shared governmental power that obscures accountability for the sake of other important values, such as deliberation and caution. And—like bicameralism, the veto, and any number of other accountability-blurring “checks and balances”—advisory measures may also promote such deliberation and caution.

Moreover, Justice Liu acknowledges that it would be perfectly appropriate for the legislature to commission a Gallup poll of state voters to assist it in its legislative agenda. Wouldn’t the results of such a highly publicized poll also blur accountability? And to the extent that the legislature can more readily avoid responsibility by pointing to a public vote rather than a privately conducted poll, isn’t that only because a public vote is a more reliable measure of true attitudes of the body politic? And wouldn’t we want the legislature to have the most reliable data available to it?

Second, and quite important, notice that Justice Liu’s straightforward accountability argument would seem to forbid not only the legislature’s placement of an advisory measure on the ballot, but also the people’s direct attempt to put an advisory measure on the ballot to give the legislature formal input. Such a result (which might be supported by, but is not dictated by, past California cases) would create a deep structural dilemma because citizens are not always skilled at drafting laws that will operate in the real world, even if they have a good sense of which values they’d like to promote. Indeed, one of the big drawbacks with the initiative device modernly is that areas like affirmative action, immigration, campaign finance, taxation, etc., are so complicated that initiatives written by non-experts often lock in sub-optimal specifics in attempted furtherance of (at least arguably) laudable and broadly supported sets of principles. In a sensible system that includes direct democracy, there ought to be a way for the voters to say, in a focused and formal way: “We’d like a law that does the following things, but we’d be better off leaving it to legislative experts to draft the details, because we might not do a good job on the fine points, and we thus might generate undesirable consequences that a legislature but not ordinary citizens would be able to foresee.” Having citizen groups feel obligated to draft and implement the particulars of complex policy measures is one of the problems with direct democracy we should want to reduce, not one of its salutary features we should want to enhance.

Third, and in some respects most important, I note that there is a provision, Article 1, § 3(a), in the California Constitution that explicitly provides that “the people have the right to instruct their representatives.” “Instruction” is a constitutional term of art that goes back to the eighteenth and nineteenth centuries; it is a formal device by which voters collectively direct their state (but not federal) legislators to undertake specific legislative actions, and legislators are bound to comply. As constitutional historians Dan Farber and Suzanna Sherry have observed: “[At the founding in 1787] [v]oters in most states . . . had the right to instruct their representatives and to direct votes on individual issues. [Four] state constitutions [explicitly] guaranteed such a right. In the others, the right was assumed.” From what I can tell, the formal right of instruction has been included in every version of California’s Constitution going back to 1849, shortly before California became a state.

Over the past two hundred years, the device of formal voter instruction has been invoked with decreasing frequency across the nation, and the idea that state legislators would be legally bound to follow any instruction has also been diluted. Indeed, the California Supreme Court has not meaningfully discussed Article 1, § 3(a)’s instruction provision in recent decades, if ever, even in instances in which the voters seem to have attempted instruction. (American Federation of Labor v. Eu, decided in 1984, is one such case where the court inexplicably failed to discuss the provision.) The Article 1, § 3(a) issue may not have been briefed to the court in the Proposition 49 papers, which would certainly account for and justify the failure of Justice Liu’s opinion to mention it.

But the fact that the instruction device has fallen out of favor or lost its power to legally bind legislators does not mean that the device and its textual and historical pedigrees should be ignored. Before the California Supreme Court issues an opinion (after full briefing and careful deliberation in the Proposition 49 matter) holding that any statewide information-gathering “advisory” measure, whether the measure comes from the people directly or from the legislature, is per se inappropriate for the ballot, the court should explain why it is reading the instruction provision out of the state constitution (or at least reading it not to apply in these circumstances).

Finally, I do acknowledge that there might be arguments that distinguish between advisory measures originating from the people and advisory measures the legislature seeks to place onto a ballot. Such arguments could be used to strike down Proposition 49 without gutting the people’s right to instruct. At present I am not convinced that any such arguments do forcefully undermine SB 1272 and Proposition 49, but I look forward to seeing what the briefing and the court’s ultimate opinions say.