We the People — Part 10

“First Amendment freedoms need breathing space to survive.”  
~ Chief Justice John Roberts

By Alden Benton

Proposition 59 is a Legislative Advisory question.  In effect, this proposition is a statewide opinion poll asking California voters whether the legislature should use its powers to propose and ratify an amendment to the United States Constitution that would overturn the 2010 Citizens United Supreme Court decision.

While Proposition 59 is a straightforward measure, to make an informed decision voters need to understand the process of amending the U.S. Constitution.  Additionally, voters need to understand the implications of the Citizens United case.

There are two ways to amend the United States Constitution.  First, both the House of Representatives and the Senate must pass an amendment proposed by Congress by a two‑thirds vote of each house.  Congress then submits the amendment to the state legislatures.  If 38 state legislatures approve the amendment, it becomes part of the Constitution.

Alternatively, a constitutional convention called by two‑thirds of the state legislatures may propose and ratify amendments.  Of the 27 amendments to the Constitution, none came from a constitutional convention.

Citizens United is a case brought before the United States Supreme Court decided in 2010.

Citizens United is a non-profit corporation whose budget comes primarily from individual donors with a smaller amount coming from donations by for-profit corporations. 

During the 2008 presidential primaries, Citizens United released the film Hillary: The Movie.  This movie is a documentary about then-Senator and presidential candidate Hillary Clinton.

A cable company offered to run Hillary: The Movie on-demand at no cost to viewers.  Citizen United would pay a fee of $1.2 million to make the movie available.  The Federal Election Commission (FEC) stopped this arrangement saying it violated campaign-funding laws.  (See Citizens United 558 U.S. 310 (2010)

At the time, Campaign-funding laws prohibited corporations and unions from using general treasury funds to make direct contributions to candidates or to advocate the election or defeat of a candidate.

In addition, corporations could not use corporate or union funds for advocacy or electioneering communications, but could form a separate “segregated” fund for these purposes.  These “segregated” funds are Political Action Committees (PACs).  Contributions to PACs may only come from employees, members, or stockholders.

Citizens United sued the FEC, claiming these provisions were unconstitutional.  The U.S. District Court denied the Citizens United request for an injunction and stated the regulation in question was constitutional.  Citizens United appealed to the United States Supreme Court.

In the court’s decision, Justice Anthony Kennedy, wrote that the actions of the FEC are an,

“. . .  ongoing chill upon speech that is beyond all doubt protected [and] makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity has been demonstrated.”

The court ruled that the section of the law challenged in the Citizens United case “is an outright ban, backed by criminal sanctions.”  The court further stated that the PAC alternative still does not allow a corporation to speak and imposes burdensome and expensive regulations.

In the Citizens United decision, Justice Anthony Kennedy further states,

“The FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. . . .This is an unprecedented governmental intervention into the realm of speech.”

In Citizens United,

“The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”

The Supreme Court reversed the District Court’s opinion, thus declaring the restrictions on corporate speech in 2 USC §441b unconstitutional.


“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”  ~Justice Anthony Kennedy

© 2016 A. L. Benton/Independence Creek Enterprises
All Rights Reserved
Follow Alden Benton on FaceBook or
on Twitter @AldenBenton


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