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Walters: Supreme Court got it right on advisory measure

  • (LISA BENSON / Washington Post Writers Group)

The state Supreme Court — or at least five of its members — got it right by declaring that an advisory measure on campaign finance placed on the Nov. 4 ballot by the Legislature is legally suspect and should be removed.

The court voted 5-1 to remove what had been Proposition 49, which asked voters to press Congress to overturn the U.S. Supreme Court’s highly controversial Citizens United ruling.

The ruling freed corporations and labor unions to make unlimited independent expenditures in federal campaigns — already the law governing state campaigns in California.

Technically, the state court did not rule on the merits of whether the Legislature can place such advisory measures, lacking the force of law, on the ballot, although one justice, Goodwin Liu, declared that the Legislature lacks such power. Rather, the court blocked it from the Nov. 4 ballot and called for further litigation on the underlying issue.

Interestingly, Chief Justice Tani Cantil-Sakauye was the dissenter, urging other justices to leave the measure on the ballot and consider its legality after the election.

Her preferred action, however, would have been tantamount to endorsing Proposition 49’s legality, since its effect on Congress, whatever it might be, would have already been made.

There’s nothing in the state constitution or state law that authorizes the Legislature to submit advisory measures to voters, although it did it twice in 1933. Three decades ago, the state Supreme Court invalidated an advisory measure placed on the ballot by initiative because it had no force of law, which certainly implies that the Legislature also lacks authority.

It’s evident, too, that the real motive for placing Proposition 49 on the ballot was not to influence Congress, which routinely ignores resolutions and other nonbinding actions.

It was to spark political activity among the liberal “netroots” activists who, for some reason, consider the Citizens United decision to be a civic sin of the first magnitude, thus countering what is likely to be a very low turnout election in California, especially among Democrats.

Gov. Jerry Brown allowed the bill placing Proposition 49 on the ballot to become law without his signature while worrying aloud about cluttering the ballot with nonbinding advisory measures — a somewhat craven act. He’s probably happy that the Supreme Court took him off the political hook.


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