Californians To Vote On Stripping Common Cause Of Its First Amendment Rights


I recently wrote about SB 1272 (Lieu) which calls a special election for this November 4 at which California voters will be able to cast an advisory vote on whether the U.S. Constitution should be amended to overturn the U.S. Supreme Court’s holding in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).  Last week, Governor Edmund G. Brown Jr. allowed SB 1272 to become law without his signature.

The legislative findings supporting SB 1272 (which oddly reference a 2010 Washington Post-ABC News poll) include the following grim assertion:

This decision [Citizens United] presents a serious threat to self-government by rolling back previous bans on corporate spending in the electoral process and allows unlimited corporate spending to influence elections, candidate selection, policy decisions, and public debate.

It is important to remember, however, that Citizens United involved a non-profit corporation that wanted to make a movie available on a video-on-demand basis.  Federal law, however, banned corporations and unions from “electioneering communications”.  2 U.S.C. § 441b.  Denying First Amendment rights to corporations won’t affect for-profit entities.  It would also effectively muzzle many advocacy organizations.  As Justice Kennedy noted in Citizens United:

Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

Displaying a remarkable short-sightedness, Common Cause supported SB 1272 even though it is a nonprofit corporation.

The special election won’t be a separate affair.  It will be consolidated with the statewide general election and will be conducted in all respects as if there were only one election.  Only one form of ballot shall be used.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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