As Chief Justice John Roberts celebrates 10 years at the helm of our Nation's High Court, there's little question that the Roberts Court's five-to-four ruling in Citizens United v. FEC -- which allowed corporations and unions to spend unlimited amounts of money to elect the candidates of their choice -- remains one of its most unpopular rulings.
Indeed, even five years later, the vast majority of Americans -- in a recent Bloomberg Poll, 78 percent -- support overturning Citizens United, with opposition to the decision spanning the ideological spectrum.
Count California voters among the discontented. In response to Citizens United, tens of thousands of Californians signed a petition asking the state legislature to place a measure on the ballot testing voter support for a constitutional amendment overturning the decision. Prior to the 2014 election, the state legislature did just that. However, the Howard Jarvis Taxpayers Association challenged the measure as violating the California State Constitution.
The California Supreme Court then removed the measure -- Proposition 49 -- from the ballot in a 5-1 vote, pending full briefing and oral argument. On Tuesday, the California Supreme Court will finally hear argument in that case, Howard Jarvis Taxpayers Association v. Padilla.
While the court's decision will turn primarily on its reading of the California State Constitution, the Justices shouldn't lose sight of the useful role that advisory measures like Proposition 49 have played in other constitutional reform efforts throughout American history, including in California itself. For a key example, let's rewind a little over a century.
Like California voters today, reformers then were concerned about the dangers of political corruption, except in a different context -- the selection of U.S. Senators. Traditionally, Senators were chosen by state legislatures, not the people themselves. Nineteenth Century reformers were concerned about allegations that corporations and moneyed interests were effectively buying certain U.S. Senate seats.
Over time, states began experimenting with different ways of providing the voters with a voice in selecting their own Senators, and reformers began pushing for a constitutional amendment making the direct election of Senators the law of the land.
Even as the movement grew, the U.S. Senate used its role in the amendment process to protect the status quo and block the proposed amendments. In response, state legislatures used their own power under the U.S. Constitution -- the power to call for a constitutional convention to propose new amendments -- to spur the Senate to action. Eventually, reformers came within one state of the total required to call for a convention at the time.
Faced with this threat, the Senate finally acquiesced, approving the new amendment -- our Seventeenth Amendment -- in 1912 and sending it along to the states for ratification. The Amendment was ratified shortly thereafter.
As part of this push towards reform, the California state legislature placed an advisory measure on the ballot in 1892, asking whether California voters supported the direct election of Senators. California voters approved the measure by an overwhelming margin. And in 1893, California became the first state to apply to Congress for a constitutional convention focused on the direct election of Senators -- the beginning of a multi-decade campaign that culminated in the ratification of the Seventeenth Amendment.
And California isn't alone in using advisory measures to help push for constitutional reform. For instance, several states -- including Connecticut, Louisiana, Massachusetts, Nevada, Oregon, and Wyoming -- used advisory ballot measures during the drive to ratify the Twenty-First Amendment, which ended our nationwide experiment with Prohibition.
There are also similar examples in the context of failed reform efforts, including the push for the Child Labor Amendment in the 1920s, the Equal Rights Amendment in the 1970s, and the Balanced Budget Amendment in our own decade. Finally, various states and localities -- including the City of Los Angeles and Mendocino County in California -- have already used similar advisory measures to gauge support for constitutional reforms addressing Citizens United and the corrupting influence of money in politics.
Far from being inconsistent with our constitutional system, advisory ballot measures like Proposition 49 promote the principle of popular sovereignty at the core of the U.S. Constitution. The opening words of our Nation's Charter -- "We the People" -- make clear the Founders' commitment to popular sovereignty. At its core, popular sovereignty is the idea that the people themselves are the source of the government's authority and, in turn, can alter the government whenever they deem it appropriate -- whether in response to tyrannical misrule or smaller-scale deficiencies in the Constitution's design.
Importantly, the Founders recognized that they didn't have a monopoly on constitutional wisdom, so they prescribed a means for amending the new Constitution -- a method that they hoped would be "an easy, regular[,] and Constitutional way" of altering our Nation's Charter. While one may quibble with just how "easy" and "regular" this process has proven over time (and I would), there is little doubt that the Framers sought to ensure that, under their new Constitution, the American people would be able to pass any amendment that was, in the words of James Iredell, a prominent supporter of the Constitution and future Supreme Court Justice, "conducive to their welfare" and "generally wished for by the people."
Advisory ballot measures like Proposition 49 are consistent with this goal. A "yes" vote on such an advisory measure provides important aid to a state legislature in ultimately deciding how (if at all) to engage in the federal constitutional amendment process, either by applying for a federal convention, or, when relevant, ratifying any new amendment that clears the proposal stage. Advisory ballot measures simply permit voters to relay their own preferences to their state legislators, leaving it to the legislators themselves to act however they deem fit.
In the end, Proposition 49 is an attempt by the California state legislature to use the state ballot to solicit the views of California voters on an important topic of public concern -- whether to amend the U.S. Constitution to overturn Citizens United. With oral argument scheduled for Tuesday, the question before the California Supreme Court is a simple one: will the Justices let California voters have their say?
This piece is also cross-posted to Constitutional Accountability Center's Text & History blog.