This November, California voters will get to vote on an advisory ballot measure that will survey whether Congress should overturn the 2010 U.S. Supreme Court decision in the Citizens United case, which held that unlimited political spending by corporations and labor unions is protected by free speech.

If it sounds familiar, it is, because this is not the first attempt to put this advisory initiative on the ballot. In July 2014, Proposition 49 was approved by the Legislature with the intention of placing it on the November 2014 ballot. However, the initiative was immediately challenged by the Howard Jarvis Taxpayers Association on the grounds that the initiative was only an attempt to boost voter turnout in a gubernatorial election and advisory measures were not permitted under California law. The state Supreme Court blocked the advisory proposition for the 2014 election pending further consideration of its legality.

In its appeal, the Legislature argued that eleven other states have voted on advisory measures and that the Citizens United ruling is an important matter of public policy. In January of this year, the California Supreme Court upheld the Legislature’s power to use advisory ballot measures.  The court ruled, in a 6-1 vote, that Proposition 49 was constitutional and concluded that the opponents had “identified no constitutional obstacle” to placing the measure on the statewide ballot. The court opined that it is an “exercise of the Legislature’s implied power” to use this tool to ensure they speak on behalf of their state when seeking federal constitutional amendments.

After the court’s ruling in January, the Legislature introduced and passed a new bill, SB 254 (Allen and Leno), which once again requires an advisory ballot measure to survey California voters’ views on the Citizens United case. The bill became law without Governor Brown’s signature on June 9^th. Governor Brown stated that he allowed it to go to the ballot by taking no action as he is hesitant to make it “a habit to clutter our ballot with nonbinding measures.”

Currently, there are nine measures headed for the November 8^th ballot including the plastic bag ban referendum, state prescription drug pricing, required use of condoms in pornographic films, the statewide school bond and changes to the hospital fee system.

As always, if you have questions on ballot initiatives, please contact Steve Churchwell at (916) 468-0945 steve@whitebrennerllp.com, or Celia Mata at (916) 468-0623 celia@whitebrennerllp.com.