On July 3, 2014, the California Legislature enacted Senate Bill 1272, placing an advisory question (known as Proposition 49) on the November 2014 ballot soliciting the views of California voters on whether to amend the U.S. Constitution to overturn the U.S Supreme Court’s decision in Citizens United v. FEC. Shortly thereafter, the Howard Jarvis Taxpayers Association (“HJTA”) sought to remove Proposition 49 from the ballot, arguing that the Legislature had exceeded its authority in placing it there.

On August 11, 2014, the California Supreme Court issued a writ of mandamus ordering the Secretary of State to remove the measure from the ballot, pending full briefing and argument. Although HJTA’s challenges to the validity of Proposition 49 arose under the state Constitution, Justice Goodwin Liu filed a concurring opinion that relied, in part, on federal constitutional principles to support removing Proposition 49 from the 2014 ballot, arguing that advisory measures like Proposition 49 are incompatible with the system of representative democracy chosen by our nation’s Founders.

On January 28, 2015, Constitutional Accountability Center filed an friend-of-the-court-brief brief in the California Supreme Court in support of the California Legislature, countering Justice Liu’s arguments and demonstrating that there is no federal aversion to a state legislature’s seeking the input of the people in choosing whether to invoke the amendment process set out in Article V of the U.S. Constitution. Not only did the Framers write Article V against a backdrop of popular control of state legislatures, but advisory measures like Proposition 49 are consistent with the principle of popular sovereignty at the core of the U.S. Constitution. Accordingly, ballot measures have been used throughout our nation’s history – including in California – to promote constitutional change, ranging from the use of advisory measures in the efforts leading to the ratification of the Seventeenth Amendment, the use of such measures in the push to end Prohibition, and their current role in modern day efforts to address the consequences of Citizens United. With our brief, we urged the California Supreme Court to uphold the California Legislature’s authority to solicit the views of California voters on an important topic of public concern – whether to overturn Citizens United by constitutional amendment.

The California Supreme Court heard oral argument on October 6, 2015. On January 4, 2016, the court – in a 6-1decision, with a concurrence by Justice Liu – reversed course and upheld the constitutionality of Proposition 49, recognizing, as CAC had argued, that advisory ballot measures like Proposition 49 are consistent with the U.S. Constitution’s text and history, the principle of popular sovereignty at the Constitution’s core, and the use of similar measures as part of other constitutional reform movements throughout American history.