When nine of ten congressional races are now won by the candidate who raises the most money in campaign funds, fundamental decisions about American government look more like auctions than elections. In response, a growing citizen movement is reviving a forgotten tool known as voter instructions to curb a runaway Supreme Court majority that has skewed our electoral system in favor of a wealthy few.
In 2012, voters in Colorado and Montana approved instruction measures to get big money out of politics by margins of three-to-one. These measures charged the congressional delegation from those states with supporting a constitutional amendment that would overturn the Supreme Court’s misguided rulings in Citizens United v. FEC and other related cases.
Now, California voters have a chance to tell their members of Congress whether they want them to pass a constitutional amendment that would allow for limits on political campaign spending, thanks to a ruling this week by the California Supreme Court that validates an instruction measure the legislature had referred to voters in 2014.
The instruction measure asks “Shall the Congress of the United States propose, and the California legislature ratify an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission… to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?”
Americans used similar instructions during the colonial period and in the first hundred years of our current Constitution. California passed a statewide instruction measure in 1892 overwhelmingly calling for the right to vote directly for U.S. Senator. Other states followed California, leading to passage of the 17th Amendment to end legislative appointment to the U.S. Senate.
Previous generations of Americans, and their elected representatives considered direct instructions from the electorate to be morally binding on a legislator. In deliberations that led the framers of California’s state constitution to include an explicit right to instruct, delegates clarified their expectation that representatives who could not in good faith follow their instructions would resign in order to allow someone else to honestly represent the will of the voters. Two members of the U.S. Senate who later went on to become president resigned their Senate seats rather than ignore instructions from their states.
After the advent of the direct initiative process, citizens of California and other western states had little need to instruct state legislators – they could pass laws or even amend their state constitution themselves and completely bypass the legislature. But for a federal constitutional amendment, citizens must still rely on elected representatives at the state and federal level.
The California Supreme Court, having long forgotten about the practice of voter instructions and the explicit guarantee of the right to instruct in the California constitution, temporarily removed the anti-Citizens United instruction from the ballot in 2014. After conducting a thorough legal hearing in the fall of 2015, this week’s ruling corrected that error and put the ball back in the court of the voters.
This political mandate in the nation’s most populous state could force Congress to act, but only if citizens inform themselves as to whether elected officials follow their instructions and then remove those who do not from office.
Other states and municipalities should take a cue from California and seek their own voter instruction measures. As a representative democracy, it’s essential that Congress listen to all the people – both the wealthy and the poor. But current campaign finance laws grant wealthy patrons and their hired lobbyists unequal access to lawmakers, ensuring some voices are heard more loudly than others. It’s no surprise then, that our laws favor wealthy and special interest over the common good. It’s time to hold Congress accountable to ‘We the People.’ The can begin by listening to their explicit instructions to reduce the role of big money in politics.
Cressman was the architect behind anti-Citizens United voter instructions in California, Colorado, and Montana. He is the author of the new book: When Money Talks- The High Price of “Free” Speech and the Selling of Democracy.