Opinion
No. S220289.
01-04-2016
HOWARD JARVIS TAXPAYERS ASSOCIATION et al., Petitioners, v. Alex PADILLA, as Secretary of State, etc., Respondent; Legislature of the State of California, Real Party in Interest.
Bell, McAndrews & Hiltachk, Thomas W. Hiltachk and Charles H. Bell, Jr., Sacramento, for Petitioners. No appearance for Respondent. Diane F. Boyer–Vine, Jeffrey A. DeLand, Robert A Pratt, Sacramento; Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser and Dale K. Larson, Los Angeles, for Real Party in Interest. Douglas T. Kendall, Elizabeth B. Wydra, San Francisco, David H. Gans and Tom Donnelly for Constitutional Accountability Center as Amicus Curiae on behalf of Real Party in Interest. Ronald A. Fein; Arnold & Porter, Steven L. Mayer, San Francisco, and Amie L. Medley, Los Angeles, for Free Speech for People, Inc., as Amicus Curiae on behalf of Real Party in Interest. Michael B. Salerno, Steven Bonorris and Nedda Black for The Center for State and Local Government Law as Amicus Curiae on behalf of Respondent and Real Party in Interest.
***735 Bell, McAndrews & Hiltachk, Thomas W. Hiltachk and Charles H. Bell, Jr., Sacramento, for Petitioners.
No appearance for Respondent.
Diane F. Boyer–Vine, Jeffrey A. DeLand, Robert A Pratt, Sacramento; Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser and Dale K. Larson, Los Angeles, for Real Party in Interest.
Douglas T. Kendall, Elizabeth B. Wydra, San Francisco, David H. Gans and Tom Donnelly for Constitutional Accountability Center as Amicus Curiae on behalf of Real Party in Interest.
Ronald A. Fein; Arnold & Porter, Steven L. Mayer, San Francisco, and Amie L. Medley, Los Angeles, for Free Speech for People, Inc., as Amicus Curiae on behalf of Real Party in Interest.
Michael B. Salerno, Steven Bonorris and Nedda Black for The Center for State and Local Government Law as Amicus Curiae on behalf of Respondent and Real Party in Interest.
Opinion
WERDEGAR, J.
**631 In 2014, the California Legislature sought to place on the general election ballot a nonbinding advisory question, Proposition 49. The measure would have asked the electorate whether Congress should propose, and the Legislature ratify, a federal constitutional amendment overturning the United States Supreme Court decision Citizens United v. Federal Election Comm'n (2010) 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753.
In response to a petition for writ of mandate urging the unconstitutionality of the Legislature's action, we issued an order to show cause and directed the Secretary of State to refrain from taking further action in connection with placement of Proposition 49 on the ballot. Our action did not rest on a final determination of Proposition 49's lawfulness. Instead, we concluded “the proposition's validity is uncertain” and the balance of hardships from permitting an invalid measure to remain on the ballot, as against delaying a proposition to a future election, weighed in favor of immediate relief. (See American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 697, 206 Cal.Rptr. 89, 686 P.2d 609.)
We now resolve the merits of Proposition 49's constitutionality. We conclude: (1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers; (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and ***736 seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature's exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional. We deny the instant petition for a writ of mandate.
Factual and Procedural Background
In Citizens United v. Federal Election Comm'n, supra, 558 U.S. 310, 130 S.Ct. 876, a divided United States Supreme Court invalidated federal election law restrictions on the political speech of corporations, holding that a speaker's identity as a corporation, as opposed to natural person, could not justify greater regulation of speech than the First Amendment would have otherwise permitted. (Id. at pp. 319, 365, 130 S.Ct. 876.) In the few years since its issuance, Citizens United 's holding concerning the speech rights of corporations has generated considerable democratic debate, receiving criticism in the presidential State of the Union address, giving rise to resolutions in Congress to amend the Constitution, and sparking calls for reconsideration within the United States Supreme Court itself. Many have agreed with the Supreme Court majority, while others have concluded the Constitution must be amended to permit renewed restraints on corporate involvement in popular elections.
The Legislature first joined issue with Citizens United in Assembly Joint Resolution No. 1, introduced in 2012 and adopted by both houses of the Legislature in 2014. (Assem. Joint Res. No. 1, Stats. 2014 (2013–2014 Reg. Sess.) res. ch. 77.) The resolution declared: “Corporations are legal entities that **632 governments create and the rights that they enjoy under the United States Constitution should be more narrowly defined than the rights afforded to natural persons.” (Ibid.) Acknowledging Citizens United 's holding to the contrary, the resolution exercised the Legislature's federal constitutional power to “apply to the United States Congress to call a constitutional convention for the sole purpose of proposing an amendment to the United States Constitution that would limit corporate personhood for purposes of campaign finance and political speech and would further declare that money does not constitute speech and may be legislatively limited.” (Assem. Joint Res. No. 1, Stats. 2014 (2013–2014 Reg. Sess.) res. ch. 77; see U.S. Const. art. V [“The Congress ... on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments....”].)
Separately, the Legislature enacted Senate Bill No. 1272 (2013–2014 Reg. Sess.) (Senate Bill No. 1272), “[a]n act to submit an advisory question to the voters relating to campaign finance....” (Stats.2014, ch. 175.) A lengthy preamble decried Citizens United, noted the article V process for amending the United States Constitution, and asserted “[t]he people of California ***737 and of the United States have previously used ballot measures as a way of instructing their elected representatives about the express actions they want to see them take on their behalf, including provisions to amend the United States Constitution.” (Stats.2014, ch. 175, § 2, subd. (m); see generally id., § 2.) The measure “call[ed] a special election to be consolidated with the November 4, 2014, statewide general election” (Legis. Counsel's Dig., Sen. Bill No. 1272 (2013–2014 Reg. Sess.); see Stats.2014, ch. 175, § 3) and directed the Secretary of State to submit to voters at that election an advisory question asking whether Congress should propose, and the Legislature ratify, a constitutional amendment overturning Citizens United, and thereafter to submit the results to Congress (Stats.2014, ch. 175, § 4). The measure became law in July 2014, after both houses passed it and the Governor declined to sign or veto it. (See Cal. Const, art. IV, § 10, subd. (b)(3) [authorizing bills to become statutes after gubernatorial inaction].)
Subsequently, then Secretary of State Debra Bowen designated the advisory question Proposition 49 and began preparing ballot materials. The proposition was to read: “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 (2010) 558 U.S. 310 130 S.Ct. 876, 175 L.Ed.2d 753, and other applicable judicial precedents, 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?” (Stats.2014, ch. 175, § 4, subd. (a).)
Petitioners Howard Jarvis Taxpayers Association and Jon Coupal (collectively, Howard Jarvis) promptly filed a petition for writ of mandate in the Third District Court of Appeal, seeking to prevent Secretary Bowen from proceeding with placement of Proposition 49 on the November 2014 ballot. A divided Court of Appeal denied relief.
Howard Jarvis next filed an original emergency petition for writ of mandate in this court. After expedited briefing, we issued an order to show cause and stayed Secretary Bowen from taking further actions in connection with Proposition 49 until after a final decision, effectively removing the advisory question from the November 2014 ballot. The order explained, “[t]ime constraints require the court to decide immediately whether to permit Proposition 49 to be placed on the November 4, 2014, ballot pending final resolution of this matter.” A five-justice majority concluded Proposition 49's validity was uncertain and the cost of postponing a potentially lawful proposition to a later ballot, a course the Legislature itself had contemplated in an earlier version of the bill, was outweighed by the cost of permitting a potentially **633 invalid proposition to reach the ballot. “ ‘The presence of an invalid measure on the ballot steals attention, time and money from the numerous valid propositions on the same ballot. It will confuse some voters and frustrate others, and an ultimate decision that the measure is invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure.’ ( ***738 American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 697 206 Cal.Rptr. 89, 686 P.2d 609.)”
Our actions in August 2014 resolved whether Proposition 49 could be placed on the November 2014 ballot. Senate Bill No. 1272 directs only placement on that ballot (Stats.2014, ch. 175, §§ 3–4), and this case is thus technically moot. But whether the Legislature ever has power to place advisory questions on a statewide ballot is important and undecided, and in the event we were to conclude Senate Bill No. 1272 was indeed constitutional, the Legislature could pass an identical measure directing placement of the same advisory question on a future ballot. In response to our order to show cause, Howard Jarvis and real party in interest the State Legislature of California have briefed the larger questions the petition raises: whether legislative advisory questions are ever permissible, and whether in particular Proposition 49 is permissible or should be enjoined from placement on any future statewide ballot. Notwithstanding that the passage of an election cycle has interposed mootness as a potential obstacle to resolving a significant election law issue, we conclude retaining jurisdiction and addressing the merits is the better course here. (See Independent Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1024, 44 Cal.Rptr.3d 644, 136 P.3d 178; Costa v. Superior Court (2006) 37 Cal.4th 986, 994, 1005, 39 Cal.Rptr.3d 470, 128 P.3d 675.)
Discussion
I.
Proposition 49 and the State Legislature's Power to Investigate
Our Constitution vests “[t]he legislative power of this State ... in the California Legislature which consists of the Senate and Assembly....” (Cal. Const. art. IV, § 1.) It is in the nature of state constitutions that they, unlike the federal Constitution, generally do not grant only limited powers. (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 29, 30 Cal.Rptr.3d 30, 113 P.3d 1062.) Consequently, “unlike the United States Congress, which possesses only those specific powers delegated to it by the federal Constitution, it is well established that the California Legislature possesses plenary legislative authority except as specifically limited by the California Constitution.” (Id. at p. 31, 30 Cal.Rptr.3d 30, 113 P.3d 1062.) Lying at the core of that plenary authority is the power to enact laws. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 254, 135 Cal.Rptr.3d 683, 267 P.3d 580.) It has been said that pursuant to that authority, “[t]he Legislature has the actual power to pass any act it pleases,” subject only to those limits that may arise elsewhere in the state or federal Constitutions. (Nougues v. Douglass (1857) 7 Cal. 65, 70.)
Although the Legislature notes in passing that Proposition 49 resulted from a statute, it does not rest its argument for constitutionality on the syllogism that the legislative power includes the power to enact statutes, Senate Bill No. 1272 takes the form of an enacted statute, and thus for that reason alone the bill and Proposition 49 are within a constitutional source of power. Instead, the Legislature argues it has the inherent power to conduct an investigation in order to select the wisest policy course. Pursuant to that implied investigative power, the Legislature contends, it may enact a statute placing an ***739 advisory question before the voters.
**634 We have since the early days of statehood recognized the act of creating a legislature imbues that body with certain implied authority characteristic of parliaments: “A legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions. These powers and privileges are derived not from the Constitution; on the contrary, they arise from the very creation of a legislative body, and are founded upon the principle of self preservation.” (Ex parte D.O. McCarthy (1866) 29 Cal. 395, 403.) The scope and nature of these powers is “to be ascertained by a reference to the common parliamentary law.” (Ibid.) Many or most of a parliament's common law powers relate to matters of self-regulation, such as determining membership and establishing internal rules of procedure (see id. at pp. 403–404), and are not relevant here. One, however, is: the inherent power “[t]o investigate, by the testimony of witnesses or otherwise, any subject or matter, in reference to which [a legislature] has power to act.” (Id. at p. 404, italics omitted.)
The principal function of a legislature is “to enact wise and well-formed and needful laws” (In re Battelle (1929) 207 Cal. 227, 240, 277 P. 725), but a legislature cannot exercise sound judgment without information. Accordingly, “the necessity of investigation of some sort must exist as an indispensable incident and auxiliary to the proper exercise of legislative power.” (Id. at p. 241, 277 P. 725; see Special Assembly Int. Com. v. Southard (1939) 13 Cal.2d 497, 503, 90 P.2d 304 [the power to enact legislation “ ‘necessarily presupposes that the members of each house of the legislature must investigate the necessity for legislation’ ”].) The details of how this implied power is to be exercised are consigned to the Legislature's discretion in the first instance: “ ‘The ascertainment of pertinent facts for legislation is within the power of the lawmaking department of government. When a legislative body has a right to do an act it must be allowed to select the means within reasonable bounds.’ ” (Parker v. Riley (1941) 18 Cal.2d 83, 91, 113 P.2d 873; see also id. at p. 90, 113 P.2d 873 [“Intelligent legislation upon the complicated problems of modern society is impossible in the absence of accurate information on the part of the legislators, and any reasonable procedure for securing such information is proper.”].)
The investigative power is not unlimited. While the Legislature's powers and functions are extensive (see Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 299, 105 Cal.Rptr.2d 636, 20 P.3d 533), they must share space with powers reserved to the executive and judicial branches. Although the Legislature's activities can overlap with the functions of other branches to an extent, the Legislature may not use its powers to “defeat or materially impair” the exercise of its fellow branches' constitutional functions, nor “intrude upon a core zone” of another branch's authority. (Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at p. 45, 30 Cal.Rptr.3d 30, 113 P.3d 1062.) The investigative power, no less than any other, may not be used to trench upon matters falling outside the legislative purview.
Even aside from separation of powers concerns, the investigative power permits inquiry only into those subjects “in ***740 reference to which [the Legislature] has power to act.” (Ex parte D.O. McCarthy, supra, 29 Cal. at p. 404, italics omitted.) Investigation is permitted as a necessary aid to the execution of other legislative powers, not as an expansion of matters with respect to which the Legislature may act. Where those other powers are subject to limit, so too an investigation in support of them may be constrained. (See Special Assembly Int. Com. v. Southard, supra, 13 Cal.2d at p. 504, 90 P.2d 304 [“ ‘when the power to legislate ceases, then the power to investigate for the purpose of aiding the legislature in exercising this power ceases, or stated another way, when the main power of legislating dies the incidental or implied power dies with it’ ”].) The investigative power, constitutionally implied as necessary for the execution of the Legislature's other powers, does not stand as an unbounded, freestanding power in its own right.
Finally, while the method of investigation is for the Legislature to choose in its broad **635 discretion, within reason (Parker v. Riley, supra, 18 Cal.2d at pp. 90–91, 113 P.2d 873), we do not foreclose the possibility limits may arise from other constitutional provisions and the values they embrace.
Given these constraints, to determine whether a particular legislative action is authorized as an exercise of investigative power, we must in the first instance ascertain whether a nexus exists between the matter investigated and some potential action the Legislature has authority to undertake. Senate Bill No. 1272 seeks to conduct a statewide plebiscite on a proposed federal amendment and deliver its results to Congress. (Id., § 4, subds. (a), (b).) The Legislature contends the plebiscite should be understood as part of an investigation into how and whether to exercise the Legislature's powers in connection with a potential future federal constitutional amendment. Accordingly, we examine next the extent of the role the federal Constitution contemplates for state legislatures in the amendment process.
II.
State Legislatures and Federal Constitutional Amendment
The federal Constitution vests state legislatures with certain powers and duties in connection with amendments to the federal Constitution. (See U.S. Const. art. V (article V).) Article V provides in relevant part: “The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress....” This “unwieldy and cumbrous machinery” (Barron v. Baltimore (1833) 32 U.S. 243, 250, 7 Pet. 243, 8 L.Ed. 672) for altering the Constitution involves a two-stage process—proposal and ratification—with two paths available at each stage. In the first stage, proposal, either Congress or a national convention called for the purpose may propose an amendment or amendments. In the second stage, ratification, a supermajority of the several states, either through their legislatures or state conventions, must approve the proposal for it to become law. (See United States v. Sprague (1931) 282 U.S. 716, 730, 51 S.Ct. 220, 75 L.Ed. 640; Bramberg v. Jones (1999) 20 Cal.4th 1045, 1056, 86 Cal.Rptr.2d 319, 978 P.2d 1240.)
The Constitution identifies two explicit roles for state legislatures, one at each ***741 stage. At the proposal stage, a state legislature may apply to Congress for the calling of a national convention. (See, e.g., Sen. Joint Res. No. 23, Stats. 1935 (1935 Reg. Sess.) res. ch. 145, pp. 2713–2714 [calling for a convention to adopt a federal amendment permitting congressional regulation of intrastate commerce]; Sen. Joint Res. No. 25, Stats. 1911 (1911 Reg. Sess.) res. ch. 73, pp. 2183–2184 [calling for a convention to adopt a federal amendment providing for the direct election of Senators].) At the ratification stage, if Congress chooses the legislative ratification route, a state legislature may assent to, or reject, an amendment. (Hawke v. Smith, No. 1 (1920) 253 U.S. 221, 226–228, 40 S.Ct. 495, 64 L.Ed. 871; see, e.g., Sen. Joint Res. No. 22, Stats. 1971 (1971 Reg. Sess.) res. ch. 45, pp. 4161–4162 [ratifying the 26th Amend.].) All but one of the 15 amendments to the federal Constitution adopted since California's statehood have been submitted to state legislatures for approval.
If instead Congress chooses the state convention ratification route, as it did for the Twenty-first Amendment repealing Prohibition, state legislatures may still assume a role. Article V conveys power as much through “what is reasonably implied” as through “what is expressed.” (Dillon v. Gloss (1921) 256 U.S. 368, 373, 41 S.Ct. 510, 65 L.Ed. 994.) It grants to Congress and state legislatures those powers “necessary and incidental” to the carrying out of explicitly required tasks. (State ex rel. Donnelly v. Myers (1933) 127 Ohio St. 104, 186 N.E. 918, 918; see Dillon, at pp. 373–376, 41 S.Ct. 510; **636 State ex rel. Tate v. Sevier (1933) 333 Mo. 662, 62 S.W.2d 895, 898.) When Congress submitted the repeal of Prohibition to state conventions, state legislatures were implicitly charged with establishing the mechanics of the conventions. (state ex rel. tate, at p. 898; state ex rel. donnelly, at p. 918.) Legislatures across the country enacted legislation establishing how delegates were to be chosen and when and where conventions would meet. (Brown, Ratification of the Twenty-first Amendment to the Constitution of the United States (1938) pp. 521–700 [collecting laws]; see Stats.1933, ch. 149, pp. 598–602 [establishing the procedures for Cal.'s convention to ratify the 21st Amend. to the U.S. Const.].)
The several states have never successfully called for a constitutional convention. To date, each of the 27 federal amendments is the product of a proposal by Congress. But this does not mean state legislatures can play no part until ratification. Legislatures are instituted with the inherent power to issue resolutions (Jefferson, A Manual of Parliamentary Practice (1st ed. 1801) § XXI), statements that “declare [ ] policy or entreat [ ] action” but without the binding force of law ( American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 712, 206 Cal.Rptr. 89, 686 P.2d 609). From the earliest days of the Republic, state legislatures have used that authority to press Congress to wield its own article V proposal power. Unlike the convention power, these resolutions have proven instrumental in reshaping the federal Constitution through amendment; beginning with the very first post-Bill of Rights amendment, one can ***742 find their influence underlying the Constitution's evolution.
In 1793, the legislatures of Massachusetts and Virginia passed resolutions appealing to their representatives in Congress for a constitutional amendment overturning the United States Supreme Court's narrow construction of state sovereign immunity in Chisholm v. Georgia (1793) 2 U.S. 419, 2 Dall. 419, 1 L.Ed. 440. (See New Hampshire v. Louisiana (1883) 108 U.S. 76, 88, 2 S.Ct. 176, 27 L.Ed. 656 [Mass. res.]; Florida v. Georgia (1855) 58 U.S. 478, 519–520, 17 How. 478, 15 L.Ed. 181 (dis. opn. of Campbell, J.) [Va. res.].) Senator Caleb Strong of Massachusetts responded by moving that Congress propose such an amendment (Florida v. Georgia, at p. 520; 4 Annals of Congress (3d. Cong.1794) pp. 25, 29–30), and the first post-Bill of Rights amendment was ratified in 1795 (U.S. Const., 11th Amend.). Similar resolutions preceded the Twelfth Amendment, ratified in 1804. (See 13 Annals of Congress (7th Cong. 1st Sess.1802) pp. 95–96 [Mass. res.]; 11 Annals of Congress (8th Cong. 1st Sess.1803) pp. 509, 602–603, 1285 [N.Y. res.]; id. at p. 629 (1802) [N.C. res.]; id. at p. 472 (1802) [Vt. res.].)
Aside from changes wrought by the Civil War, the Constitution remained static for the next century, but when the next wave of changes came, state legislative resolutions were again at the forefront. California's Legislature first urged the direct election of senators to Congress in 1874, and did so again in 1893 and 1900. Numerous other states took similar action; by 1896, the Idaho, Indiana, Iowa, Kansas, Ohio, Oregon, **637 Wisconsin and Wyoming Legislatures had joined California in instructing their congressional representatives in favor of pursuing a federal amendment. (sen. rep. no. 54–530, 1st sess., p. 9 (1896).) ultimately, dozens of states would join the chorus. (See Hall, The History and Effect of the Seventeenth Amendment (1936) pp. 221–223, 512–528; Haynes, The Election of Senators (1906) pp. 108–109.) These pleas spurred action in both houses of Congress. (See, e.g., Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History (1897) pp. 61–62 [noting the House of Representatives' passage of a proposed amendment as ***743 a response to repeated state legislative resolutions requesting one]; 45 Cong. Rec. 7109–7112 (1910) [introduction of proposed amend. by Sen. Owen of Okla. following a resolution from his state legislature requesting one].) By 1913, direct election of senators was a part of the federal Constitution. (U.S. Const., 17th Amend.)
State resolutions calling for a congressionally proposed federal amendment also preceded the Nineteenth Amendment, which extended suffrage to women. (O'Connor, The History of the Women's Suffrage Movement (1996) 49 Vand. L.Rev. 657, 667.) The same was true in advance of the Twenty-first Amendment, repealing Prohibition. (E.g., Conn. Pub. Acts 1931, ch. 272, p. 285, § 1.)
State pressure for constitutional change fails far more than it succeeds. Over the years, state legislatures have submitted thousands of resolutions, but Congress has proposed only a few dozen amendments. For example, state legislatures disturbed by the United States Supreme Court's reapportionment decisions responded with a mixture of article V convention calls and state resolutions requesting that Congress itself propose a federal amendment restoring to the states broad power over apportionment. Ten states asked for Congress to propose an amendment, while one dozen exercised their own power to call for a convention. (Kyvig, Explicit & Authentic Acts (1996) p. 374 & fn. 14.) Ultimately, no amendment emerged from Congress, and an insufficient number of convention calls were submitted to require a national convention.
As the successful Seventeenth Amendment movement and unsuccessful reapportionment movement demonstrate, the use of a direct convention call and an entreaty to Congress to propose an amendment are not mutually exclusive approaches. Just as different state legislatures may elect one route or the other to constitutional change, so a particular state legislature may prefer a multi-front approach and take both paths simultaneously. For example, in June 1935, with the country in the throes of the Depression, the Legislature concluded reform of federal securities and bonds taxation to ensure wealthy stock- and bondholders bore a greater share of the costs of government was urgently needed. The Legislature passed a resolution calling on Congress to propose a federal amendment limiting tax exemptions for these forms of property. (Sen. Joint Res. No. 21, Stats. 1935 (1935 Reg. Sess.) res. ch. 108, p. 2669.) Within weeks, it also used its direct federal power to call for a constitutional convention on the same subject. (Sen. Joint Res. No. 22, Stats. 1935 (1935 Reg. Sess.) res. ch. 144, pp. 2712–2713.)
III.
The Use of Advisory Questions to Facilitate the Exercise of Article V-related Powers
Text and tradition thus firmly establish a state legislature's power to petition for and **638 participate in federal constitutional change, by proposing a national convention for the consideration of an amendment, by issuing a resolution calling on Congress to itself propose an amendment, by deciding whether to ratify amendments that emerge ***744 from either of these paths, and by establishing ground rules in the event ratification is to be by state convention. If a state legislature can exercise these powers, that a legislature can also avail itself of implied investigative powers to explore the wisdom or desirability of choosing one or another course of action necessarily follows. (See Parker v. Riley, supra, 18 Cal.2d at pp. 90–91, 113 P.2d 873; In re Battelle, supra, 207 Cal. at pp. 240–241, 277 P. 725.)
As noted, however, the state law investigative power is not unbounded. Any investigation must be tethered to the exercise of other established legislative powers, and the method chosen in a particular instance must be reasonable. The issue we face is whether the Legislature may pose to the electorate a single advisory question concerning the People's support for a federal constitutional amendment. Its resolution depends on the answer to two sub-questions. First, in the abstract, does anything in the text or structure of the state or federal Constitutions preclude the Legislature from posing an advisory question when exercising its own article V authority or entreating other bodies with article V authority (Congress and fellow state legislatures) to act? Second, if there is no bar, is the specific question before us today, Proposition 49, a reasonable exercise of that implied state investigative power?
For example, federal environmental issues have been the subject of advisory questions in at least four states. The North Carolina Legislature asked voters if they were “for” or “against” location of a radioactive waste facility in the state, and directed that the results of the ballot be shared with the President, Congress, and other federal officials. Likewise, the Oregon Legislature asked: Should state officials continue challenges to federal selection of the state to house high-level nuclear waste repositories? The Wisconsin Legislature asked: Do voters support construction of a national or regional high-level radioactive waste disposal site in the state? The Massachusetts Legislature asked: “Shall the Commonwealth urge the President ... and ... Congress to enact a national acid rain program” requiring specific reductions in total national sulfur dioxide and allocate the costs of reductions equitably among the states?
A. The Role in a Republic of Representative Consultation with the People
The texts of the state and federal Constitutions are silent on the issue we face. The state investigative power is, as we have discussed, an inherent but implicit power of a legislature. The state Constitution does not otherwise clearly address the matter. The federal Constitution is even more terse: “As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule.” (Dillon v. Gloss, supra, 256 U.S. at p. 376, 41 S.Ct. 510, fn. omitted.) Regarding what state legislatures may do when carrying out their article V roles, the federal Constitution leaves the scope of the powers and their limits unarticulated.
As for precedent, in our past decisions elucidating the constitutional principles that govern legislative investigations we have not been called upon to determine whether the investigative power may include the enactment of a statute placing an advisory measure on the statewide ballot. (Cf. Parker v. Riley, supra, 18 Cal.2d at p. 91, 113 P.2d 873 [approving formation of an independent commission]; In re Battelle, supra, 207 Cal. at p. 241, 277 P. 725 [approving formation of investigative committees]; Ex parte D.O. McCarthy, supra, 29 Cal. at p. 404 [approving summoning of witnesses].)
Where neither text nor precedent affords guidance, sometimes a “page of history is worth a volume of logic.” (New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (maj. opn. of Holmes, J.); see Dyer v. Blair (N.D.Ill.1975) 390 F.Supp. 1291, 1303–1307 [looking to historical practice to understand the proper scope of state legislative power in connection with federal constitutional amendments].) The history of legislative consultation with the people, and in ***745 particular the historical use of advisory questions to inform judgments concerning federal constitutional matters, is illuminating here.
In 1721, noted British Whig and republican Thomas Gordon, writing pseudonymously as Cato, declared: “[T]he difference between free and enslaved countries lies principally here, that in the former, their magistrates must consult the voice and interest of the people; but in the latter, the private will, interest, and pleasure of the governors, are the sole end and motives of their administration.” **639 (1 Trenchard & Gordon, Cato's Letters (Hamowy edit., 1995) No. 38 (July 22, 1721) The Right and Capacity of the People to judge of Government (Gordon) p. 272.) The seeds of a practice of consultation, the nonbinding solicitation of the people's views to inform legislative judgments on significant matters, were planted in England in the 17th century. Initially, at least, the practice focused as much on the shaping of public opinion as its solicitation: “With the development of popular sovereignty in the 1640s, various members of Parliament opened communications with constituents to gain popular support for Parliamentary measures directed against the King.” (Morgan, Inventing the People (1988) p. 220.) By the 18th century, however, a more genuine interest in popular views could be found; members of the House of Commons “often” would delay action “ until they had consulted their constituents.” (Gibbons, Ideas of Political Representation in Parliament 1651–1832 (1914) p. 25; see 1 Cato's Letters, at p. 271 [“[O]ur records afford instances, where the House of Commons have declined entering upon a question of importance, till they had gone into the country, and consulted their principals, the people: So far were they from thinking that private men had no right to meddle with government.”].)
***765 Concerning the federal government's military policies, the legislature of Massachusetts in 1970 polled its voters regarding “the future course of action by the United States in Vietnam,” asking whether military victory, withdrawal pursuant to a “planned schedule,” or immediate withdrawal was preferable. Thereafter, in 1982 the legislatures of three states—New Jersey, Rhode Island, and Wisconsin—asked their voters whether the state should inform the President and Congress that the people desired a negotiated international nuclear weapons moratorium and arms reduction. 13
Consultation shortly took root in the colonies and soon became “much more an American technique than a British one.” (Reid, The Concept of Representation in the Age of the American Revolution (1989) p. 86.) In New York and Massachusetts, consultation flourished; occasionally it was resorted to even in other colonies such as Pennsylvania that did not have an established town meeting structure through which to assess the popular will. (Id. at pp. 86–95.) When the Continental Congress was faced with its most momentous decision in the spring of 1776, it did not act unilaterally, but instead “delayed its vote on Independence by three weeks ‘to give an Oppertunity [sic ] to the Delegates from those Colonies, which had not yet given Authority to adopt this decisive Measure, to consult their Constituents.’ ” (Maier, American Scripture: Making the Declaration of Independence (1997) p. 67 [quoting a letter from Maryland's congressional representatives]; see Kruman, Between Authority & Liberty (1997) p. 77.) Maryland's delegates desired “ ‘the fair and uninfluenced Sense of the People’ on Independence” and asked their colonial assembly to “ ‘endeavour to collect the opinion of the people at large in some Manner or other.’ ” (Maier, at p. 67.) So too Massachusetts; there, the assembly asked every town to hold a special meeting, debate whether to declare independence, and advise its representatives where its people stood. (Id. at p. 59; see Luce, Legislative Principles (1930) p. 570; Reid, at p. 102.) ***746 And in 1780, New York's assembly sought popular instruction concerning whether to draft a colonial constitution. (Kruman, Between Authority & Liberty, supra, at p. 77.) Pre-constitutional America thus had an established tradition whereby the people's representatives could, if they so chose, solicit the people's views to inform momentous decisions.
The framers of the federal Constitution likewise accorded the people's views a foundational role. (See The Federalist No. 22, supra, at p. 146 (Hamilton) [the consent of the people is the “pure original fountain of all legitimate authority”]; The Federalist No. 49, supra, at p. 339 (Madison) [“the people are the only legitimate fountain of power”].) The First Amendment, Virginia Representative James Madison explained, ensured “the people may therefore publicly address their representatives[,] may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will.” (1 Annals of Congress (1st Cong. 1789) p. 766.) These popular views, Alexander Hamilton wrote, should matter (up to a point): “The republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden **640 breese of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.” (The Federalist No. 71, supra, at p. 482 (Hamilton).) The opinion of Thomas Gordon as Cato that in a free nation representatives could and should “ ‘consult the Voice and Interest of the People’ ” was one “[a]ll [the Founders] could agree with.” (1 The Founder's Constitution (Kurland & Lerner edits., 1987) p. 41.) The founding generation gave proof of their principles when they submitted the Constitution, not to the state legislatures, but to popular conventions for ratification. (U.S. const. art. VII; see the federalist no. 43, supra, at p. 296 (Madison) [“The express authority of the people alone could give due validity to the Constitution.”]; Remarks of Col. Mason, 2 Records of the Federal Convention of 1787, supra, at p. 88 [the Constitution must be submitted “[t]o the people with whom all power remains that has not been given up in the Constitutions derived from them”].)
Although this history does not clearly delineate the permissible means of formal consultation, it reflects an implicit understanding that republican principles generally permit representatives to inquire of the people on fundamental matters. Consistent with that understanding, for more than a century, states have employed the particular means at issue here—an advisory ballot question—to inform decisions concerning federal constitutional matters.
Until adoption of the Seventeenth Amendment, the federal Constitution vested the selection of senators in state legislatures. (See U.S. Const. art. I, § 3.) By the late 19th century many states, especially in the Midwest and West, were inclined to transfer that power to the people themselves. (1 Haynes, The Senate of the United States: Its History and Practice (1938) pp. 96–104; Rossum, California and the Seventeenth Amendment in The California Republic (Janiskee & Masugi edits., 2004) pp. 83–85.) In 1891, our Legislature placed on the next year's general election ballot an advisory question, asking the voters whether they were for, or against, “ ‘the election of United States Senators by the direct vote of the people,’ ” with the results to be submitted to the President, Congress, and every state in the Union. (Stats.1891, ch. 48, p. 46.) The result was a landslide; better than 93 percent of those casting ballots favored direct election. ***747 (Rossum, at p. 84; Hall, The History and Effect of the Seventeenth Amendment, supra, at p. 230.) So informed, the Legislature requested that California's senators and representatives propose a constitutional amendment providing for the direct election of senators. (Assem. Joint Res. No. 7, Stats. 1893 (1893 Reg. Sess.) res. ch. 15, p. 620.)
Nevada in 1893 and Illinois in 1902 followed suit. The Nevada Legislature, viewing it as “expedient that the wishes of the people of this State upon the subject of the election of United States Senators should be unmistakably expressed” (1893 Nev. Stats., ch. 17, pp. 21–22), placed on the ballot an advisory question and forwarded the results (nearly eight to one in favor of amendment) to Congress and other states' Governors (id., § 3, p. 22; Haynes, The Election of Senators, supra, at pp. 106, 110). Illinois' Legislature sought general constitutional guidance, asking the polity whether “ ‘the next General Assembly [should] take the necessary steps, under Article 5 of the Constitution of the United States, to bring about the election of United States Senators by the direct vote of the people?’ ” (Haynes, at p. 110, fn. 10.) Guidance it got; by a nearly six-to-one margin, voters favored legislative efforts to bring about a federal amendment. (Id. at p. 106.) So advised, the next year the Illinois Legislature petitioned for a national constitutional convention. (See id. at p. 108.)
Prior to ratification of the Seventeenth Amendment, our Legislature turned again to the advisory question mechanism to obtain advice on whom to select for the Senate under its not-yet-superseded federal power to choose senators. (Stats.1909, ch. 405, § 2, p. 691 providing for an “advisory vote for the purpose of ascertaining the sentiment of the voters” concerning senatorial candidates; Stats.1911, ch. 387, § 1, pp. 704–705 [directing that future general election ballots include the names of party candidates for Senate, with results of the advisory referenda to be forwarded to the Legislature].) Here, **641 California was following the lead of the many other legislatures that saw fit to inform their exercise of their federal power to choose senators through advisory plebiscites. Nebraska was the first state to adopt this course, in 1875 (Kyvig, Explicit & Authentic Acts, supra, at p. 210); in 1899, the Nevada Legislature adopted an advisory procedure essentially identical to what California later enacted (Nev.Stats.1899, ch. 71, pp. 86–87); and by 1911, more than half of all states had some form of advisory plebiscite in place (Kyvig, at p. 210; see generally Haynes, The Election of Senators, supra, at pp. 140–150).
In the 1920s and 1930s, as discontent over Prohibition grew, many state legislatures submitted to the people advisory questions asking whether the Eighteenth Amendment should be repealed. The Rhode Island Legislature declared it “proper and desirable that each qualified elector should be permitted to exercise his constitutional right to register his opinion on this broad social and economic question” and directed that the results be sent to Congress. (R.I. Acts 1930, ch. 1507, pp. 63–64.) The people of Rhode Island favored, by more than three to one, constitutional change. (Assn. Against the Prohibition Amendment, 32 Reasons for Repeal (1932) p. 34.) The results were the same in Wyoming, where the legislature solicited the electorate's views and ordered the secretary of state to transmit the results to Congress (Wyo.1931 Sess. Laws, H.J. Res. No. 4, p. 249); better than 70 percent favored a constitutional amendment (Ann. Rep. of the President of the Association Against the Prohibition Amendment for the Year 1932 (1933) p. 12). Similar votes took place across the country. (See, e.g., ***748 Conn. Pub. Acts 1931, ch. 272, pp. 285–286, §§ 2–5 petitioning Congress for repeal of the 18th Amend., subject to the electorate in an advisory vote signaling its desire for an amendment; La. Acts 1932, Act No. 241 (La.Sen.Conc.Res. No. 3), p. 767, §§ 1–5 [submitting to an advisory vote a joint resolution petitioning Congress to call a constitutional convention to repeal or modify Prohibition]; Nev. Stats.1925, Sen. Joint Res. No. 7, p. 358 [calling for a constitutional convention in the wake of a landslide pro-repeal advisory vote]; 32 Reasons for Repeal, at p. 34 [cataloguing the results of these and other advisory votes]; Ann. Rep. of the President, at pp. 9–12 [same].) Repeal followed anon, proposed by Congress and ratified by the end of 1933. (U.S. Const., 21st Amend.)
More recently, the Florida Legislature placed on the ballot two advisory questions asking whether the people supported federal constitutional amendments to prohibit forced busing and permit school prayer. (Fla. Acts 1972, ch. 72–3, pp. 114–115, §§ 1–2.) And in 2010, the Florida Legislature applied to Congress for the calling of a constitutional convention to propose a balanced budget amendment (Fla. Sen. Conc. Res. No. 10 (2010); see 160 Cong. Rec. S5563–S5564 (daily ed. Sept. 11, 2014)) and again placed on a subsequent general election ballot a nonbinding advisory question asking whether the federal Constitution should “be amended to require a balanced federal budget without raising taxes?” (Florida Sen. Bill. No. 2742 (2010 Reg. Sess.) § 1).
State legislatures have also seen fit to resort to advisory questions when debating whether to ratify a proposed amendment. In the 1920s, Congress sent to the states an amendment overturning United States Supreme Court decisions limiting Congress's regulatory power over child labor. (H.J.Res. No. 184, 68th Cong., 1st Sess. (1924) 43 Stat. 670; see Bailey v. Drexel Furniture (1922) 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817; Hammer v. Dagenhart (1918) 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101.) Before acting, the Massachusetts legislature submitted the question of ratification to an advisory vote of the people. (Kyvig, Explicit & Authentic Acts, supra, at p. 259.) In the 1970s, the Nevada Legislature had before it the proposed Equal Rights Amendment; as had Massachusetts a half-century earlier, it turned first to the electorate, asking voters whether they “recommend[ed] that the Nevada legislature ratify” the proposed amendment. (Nev. Stats.1977, ch. 174, § 5, p. 322; see Kimble v. Swackhamer (1978) 439 U.S. 1385, 1386, 99 S.Ct. 51, 58 L.Ed.2d 225.) Contemporaneously, the Idaho Legislature adopted a rule that it would act on proposed federal amendments only after obtaining the results of a nonbinding popular vote on any **642 proposed amendment. (Idaho Code former § 34–2217, repealed by Idaho Stats.1995, ch. 227, § 1.) When the Twenty-seventh Amendment, regulating congressional salaries, was up for consideration in 1988, the legislature put the matter to a vote and, after the electorate strongly supported it, ratified the amendment. (Kyvig, at p. 466; Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-seventh Amendment (1992) 61 Fordham L.Rev. 497, 539.)
When contested, these actions have been upheld. California's provision for including an advisory senatorial vote on primary election ballots was challenged as violating the one subject rule because it was adopted as part of an act also regulating binding, not merely advisory, primary voting. (Socialist Party v. Uhl (1909) 155 Cal. 776, 781, 103 P. 181; see Cal. Const. art. IV, § 9 [one subject rule].) In the course of rejecting the challenge, this court held: “There is nothing in the constitution ***749 —either the amendment of [former] section 2 ½ of article II, or any other provision—which prohibits the legislature from providing at a primary for an expression of a choice as to a candidate for United States senator. It is within the general legislative power to do so, and that it has provided for this advisory vote at a primary election is for the purpose of convenience” and sufficiently germane to the subject of primary elections. (Socialist Party, at p. 782, 103 P. 181.) We considered “whether legislation in connection with primary laws granting such right of expression of a choice is prohibited by the constitutional provision particularly under consideration [relating to the one subject rule], or any other ” and concluded it was not. (Ibid., italics added.)
The Nevada Supreme Court rejected a federal constitutional challenge to the Nevada Equal Rights Amendment vote, explaining that the advisory question was not “a limitation on legislative power violative of article V of the federal constitution” but instead “simply specifie[d] a means by which to assist the legislature whether to consent or not to consent to the proposed amendment.” (Kimble v. Swackhamer (1978) 94 Nev. 600, 584 P.2d 161, 162–163.) Then Justice Rehnquist, acting as Circuit Justice, rejected an application for summary reversal of this decision, agreeing that the advisory question posed no article V problem: “Under the Nevada statute in question, ratification will still depend on the vote of the Nevada Legislature, as provided by Congress and by Art. V. I would be most disinclined to read either Hawke, supra, 253 U.S. 221, 40 S.Ct. 495, or Leser [v. Garnett (1922) 258 U.S. 130, 42 S.Ct. 217], or Art. V as ruling out communication between the members of the legislature and their constituents. If each member of the Nevada Legislature is free to obtain the views of constituents in the legislative district which he represents, I can see no constitutional obstacle to a nonbinding, advisory referendum of this sort.” (Kimble v. Swackhamer, supra, 439 U.S. at pp. 1387–1388, 99 S.Ct. 51.) Kimble suggests, at a minimum, “there are at least some circumstances in which the submission of a ballot proposition relating to an amendment to the federal Constitution will not violate Article V” and establishes that article V does “not completely foreclose [ ] a state's electorate from contributing some input to the amendment process.” (Bramberg v. Jones, supra, 20 Cal.4th at p. 1058, 86 Cal.Rptr.2d 319, 978 P.2d 1240; see American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 707, 206 Cal.Rptr. 89, 686 P.2d 609 [a popular initiative proposing in nonbinding fashion a federal amendment would raise no art. V issues].)
In 1986, the Idaho Attorney General considered the constitutionality of the then extant Idaho requirement that decisions whether to ratify federal amendments be deferred until after a nonbinding advisory referendum. (See Idaho Code former § 34–2217, repealed by Idaho Stats.1995, ch. 227, § 1.) **643 The Attorney General did not doubt that state legislatures could voluntarily submit nonbinding advisory questions concerning federal constitutional amendments to the electorate in individual cases; the legislature could choose to follow ***750 a “referendum first, legislative decision second” rule. The only potential problem with the advisory vote law involved its attempt to constrain future legislatures; that is, while any legislature in its discretion could decide to pose an advisory question before voting on ratification, the current state legislature could not mandate that future legislatures be required to do so. (Ops. Idaho Atty. Gen. No. 86–9 (1986).)
B. Advisory Questions and State Constitutional Limits
Legislatures in California and elsewhere thus have established a tradition of using advisory ballot measures to determine the will of the people on questions pertaining to amendments to the federal Constitution. While “ ‘usage and custom, no matter how long continued, cannot create a right in the legislature that otherwise it does not possess' ” (Special Assembly Int. Com. v. Southard, supra, 13 Cal.2d at pp. 508–509, 90 P.2d 304), we see no evidence the drafters of the California Constitution intended to deprive the Legislature of a tool other state legislatures have long used to ensure they are truly speaking on behalf of their states in the federal constitutional amendment process.
Nevertheless, Howard Jarvis offers a series of arguments for why the structure and implications of various provisions of our state Constitution necessarily bar the Legislature from using an advisory question as a means of investigating the will of the people with respect to federal constitutional amendments. We consider four separate contentions: (1) the Constitution confines the means of investigation to investigation by committee; (2) the Constitution confines the Legislature's access to the ballot to specifically enumerated circumstances that do not include advisory questions; (3) the Constitution prohibits anyone from placing on the ballot a measure that does not enact law; and (4) the Constitution allocates legislative power to the people and the Legislature in a way that preserves clear lines of accountability and implicitly prohibits devices such as advisory questions that would blur those lines. None has merit; no constitutional provision or set of provisions prohibits the use of advisory ballot measures concerning federal constitutional amendments.
1. The Committees Clause
Howard Jarvis argues that the power to investigate is limited by California Constitution, article IV, section 11, which authorizes investigations by committee. Under that provision, “[t]he Legislature or either house may by resolution provide for the selection of committees necessary for the conduct of its business, including committees to ascertain facts and make recommendations to the Legislature on a subject within the scope of legislative control.” (Ibid.) From this language, Howard Jarvis reasons that the Legislature may ascertain facts only through committee investigations, and not by any other means. This argument misapprehends the import of the committees clause.
Prior to the clause's adoption in 1940 (see Cal. Const. art. IV, former § 37, added by initiative, Gen. Elec. (Nov. 5, 1940)), the extent of the Legislature's ability to act through less than all of the members of one house was the subject of dispute. (See Swing v. Riley (1939) 13 Cal.2d 513, 90 P.2d 313; Special Assembly Int. Com. v. Southard, supra, 13 Cal.2d 497, 90 P.2d 304; In re Battelle, supra, 207 Cal. 227, 277 P. 725.) In Battelle, this court considered but rejected the argument that the Legislature could not investigate by committee, explaining that the Constitution implied a power to investigate and committee investigations were a permissible exertion ***751 of that power. (Id. at pp. 240–244, 277 P. 725.) In Special Assembly, we again construed the state Constitution as implying a power to investigate, including a power to investigate by committee. (Special Assembly, at pp. 502–504, 90 P.2d 304.) We held, however, that the Legislature was not a continuing body, that it ceased to exist between sessions, that its express powers ceased to exist at the same time, and accordingly that the implied power to investigate died too. (Id. at pp. 504–507, 90 P.2d 304.) Consequently, an interim committee established **644 by the Assembly to conduct investigations after legislative adjournment and report to the next session of the Legislature was unconstitutional. (id. at p. 509, 90 P.2d 304; see swing v. riley, at pp. 517–520, 90 P.2d 313 [extending the same conclusion to a committee created by a joint resolution of both houses].)
At the next general election after Special Assembly, the Legislature placed on the ballot a constitutional amendment making explicit the power to investigate and act by committee and overturning the holdings that that power did not extend between legislative sessions. A ballot argument in support of amendment quoted directly from In re Battelle, supra, 207 Cal. at page 241, 277 P. 725: In “ ‘the preparation of wise and timely laws the necessity of investigation of some sort must exist as an indispensable incident and auxiliary to the proper exercise of legislative power.’ ” (Voter Information Guide, Gen. Elec. (Nov. 5, 1940) argument by Assemblymember Voigt in favor of Assem. Const. Amend. No. 2, p. 24.) Another argument explained that, although the inherent power to investigate by committee had always been recognized, “[a] recent court decision has held, however, that this practice in our State is without constitutional authority.” (Id., argument by Assemblymember Cronin, at p. 24 [implicitly referencing Special Assembly ].) The amendment's purpose was to supply, explicitly, the constitutional authority Special Assembly had found lacking. (Id., at p. 24.)
Regarding the federal government's role in legislating concerning health care, the Massachusetts and New Jersey Legislatures each asked voters: Should the state urge Congress to enact a national health care program?
**656 C. Nationwide and in California: Advisory measures submitted to voters by local legislatures (county boards and city councils)
Nationwide, the use of legislative advisory ballot measures to ask voters similar policy questions is even more frequent at the level of local legislatures—county boards of supervisors and city councils. (See < http://ballotpedia.org/Advisory_question> [as of January 4, 2016] [“Advisory questions are most commonly used at the local level, often to voice the opinions of [the] region to higher levels of government”].) Cities have made use of such advisory measures since the late 19th and early 20th centuries. (See, e.g., Zimmerman, The Referendum, supra, at p. 140 [describing such measures in New York City, Buffalo, Chicago, and Wilmington]; Crouch, Municipal Affairs: The Initiative and Referendum in Cities (1943) 37 Amer. Poli. Sci. Rev. 491, 492, 501 [observing that “[m]any city councils have made use of ... the advisory referendum, or ‘straw vote’ ” advisory ballot, and noting that between 1910 and 1938, 32 such measures were submitted to the voters in Detroit] [hereafter Referendum in Cities ].)
Local legislatively initiated advisory ballot measures in California reflect a similar pattern. Prior to 1940, and even though there was at that time no explicit constitutional or statutory authority for doing so, advisory policy measures often appeared ***766 on the ballot in Los Angeles and San Francisco. (See Referendum in Cities, supra, 37 Amer. Poli. Sci. Rev. at pp. 492, 501 [noting 46 “[p]ublic [p]olicy [r]eferenda” on the L.A. ballot, and 21 on the S.F. ballot].) Eventually, in 1976, the Legislature specifically codified and acknowledged the propriety of advisory measures placed on the ballot by local legislative entities, including county boards of supervisors and city councils. Elections Code section 9603, subdivision (a), expressly contemplates advisory measures to allow “voters within the jurisdiction, or a portion thereof, to voice their opinions on substantive issues, or to indicate to the local legislative body approval or disapproval of the ballot proposal.” Counted from 1995, the most recent year for which data is readily available, there have been, in California alone, 184 such measures—mostly by cities, with others by counties—averaging more than nine statewide each year.
Accordingly, we read the text of the committees clause as language of expansion, not restriction. The ballot argument in support endorses extant precedent establishing an implied power of investigation. The amendment simply removes doubt over whether the Legislature may investigate and carry out other necessary functions also by way of committee; it does not require the Legislature henceforth to inform itself of facts bearing on the need for action only by way of committee. Nothing in California Constitution, article IV, section 11 constrains the Legislature from placing advisory questions on the ballot.
2. Legislative Access to the Ballot
Various provisions of the state Constitution expressly authorize the Legislature to place measures on the ballot for voter approval. The Legislature may amend or repeal a statute adopted by voter initiative, but generally only if the amendment or ***752 repeal is first submitted to and approved by the electorate. (Cal. Const. art. II, § 10, subd. (c).) The Legislature may authorize the issuance of bonds, but above a certain amount they must be submitted to the voters for approval. (Id., art. XVI, § 1.) Finally, the Legislature may propose state constitutional amendments, but such amendments must be submitted to the voters for approval. (Id., art. XVIII, §§ 1, 4.)
Invoking the interpretive canon expressio unius est exclusio alterius, Howard Jarvis argues these three specific instances in which legislative action must be ratified by the voters demonstrate no others are permitted. (See also dis. opn., post, 196 Cal.Rptr.3d at 809–810, 363 P.3d at 692–693 [arguing that the constitutional scheme precludes legislative access to the ballot in other circumstances].) Under the canon, the explicit mention of some things in a text may imply other matters not similarly addressed are excluded. (In re J.W. (2002) 29 Cal.4th 200, 209, 126 Cal.Rptr.2d 897, 57 P.3d 363; Lake v. Reed (1997) 16 Cal.4th 448, 466, 65 Cal.Rptr.2d 860, 940 P.2d 311.) Applied to specific grants of power, the canon may support “ ‘ “an implied negative; an implication that no other than the expressly granted power passes by the grant; that it is to be exercised only in the prescribed mode.” ’ ” ( **645 Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196, 132 Cal.Rptr. 377, 553 P.2d 537; see Wheeler v. Herbert (1907) 152 Cal. 224, 237, 92 P. 353 [applying the canon to interpret the scope of the Legislature's powers under the state Constitution].)
Here, however, the canon has no application. The expressio unius inference arises only when there is some reason to conclude an omission is the product of intentional design. (Marx v. Gen. Revenue Corp. (2013) 568 U.S. ––––, ––––, 133 S.Ct. 1166, 1175, 185 L.Ed.2d 242, 253; Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 126, 92 Cal.Rptr.3d 595, 205 P.3d 1047.) The text must contain a specific list or facially comprehensive treatment. (See Barnhart v. Peabody Coal Co. (2003) 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 [the canon “has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence”]; Chevron U.S.A., Inc. v. Echazabal (2002) 536 U.S. 73, 81, 122 S.Ct. 2045, 153 L.Ed.2d 82 [the canon requires a “series of terms from which an omission bespeaks a negative implication”]; In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1411, 57 Cal.Rptr.3d 863 the canon “is generally applied to a specific statute, which contains a listing of items to which the statute applies” and may not have any application to “an entire code”.) The provisions Howard Jarvis relies on are widely separated, both in where they are codified and as to how and when they were adopted. The provision allowing the Legislature to propose to the electorate amendments to initiative measures was adopted by the voters at the 1946 general election. (See Cal. Const. art. IV, former § 1b, enacted by Prop. 12 (Nov. 5, 1946 Gen. Elec.); People v. Kelly (2010) 47 Cal.4th 1008, 1038, 103 Cal.Rptr.3d 733, 222 P.3d 186.) The provision providing for bond measures to be placed on the ballot was adopted at the 1878–1879 Constitutional Convention. (cal. const. art. XVI, § 1.) the provision providing for the legislature to place constitutional amendments on the ballot traces all the way back to California's first Constitution. (Cal. Const. of 1849, art. X, § 1.) Nothing suggests these provisions were intended as a conscious and comprehensive treatment, such that one might infer powers not explicitly ***753 conveyed were intentionally omitted.
More fundamentally, Howard Jarvis's argument rests on a misconception as to the nature of the constitutional provisions it cites. Each involves not a grant of authority but a limitation on legislative power—an occasion when the Legislature must turn to the voters, where otherwise it would have been at liberty to act without voter input. Whatever might be said for the logic of inferring from a few specific grants of authority the absence of some more general authority, that logic cannot be turned on its head to infer from a few specific limits on legislative authority the presence of a broader, unstated limit on legislative authority. The expressio unius canon, were we to apply it here, would at most support the inference that the three cited instances are an exhaustive list of the circumstances in which submission of a matter to a plebiscite is mandatory. The canon and the scattered provisions Howard Jarvis cites offer no guidance at all on the actual question before us, whether the Legislature in its discretion may turn to the voters to ascertain their will concerning a possible amendment to the federal Constitution.
3. The Use of the Ballot for Nonlawmaking Purposes
In a closely related argument, Howard Jarvis notes this court's holding that the people by initiative may place on the ballot only measures that enact law. (American Federation of Labor v. Eu, supra, 36 Cal.3d at pp. 694, 708–714, 206 Cal.Rptr. 89, 686 P.2d 609; see Cal. Const. art. II, § 8, subd. (a) “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”.) From this, Howard Jarvis reasons that the people's initiative and referendum power and the constitutional provisions mandating electoral review of particular actions by the Legislature (Cal. Const. art. II, §§ 8–10; id., art. XVI, § 1; id., art. XVIII, §§ 1, 4) define an exhaustive list of matters that may be placed on the ballot, that they all involve the adoption of law, and accordingly **646 that the Constitution forbids ballot measures that do not enact laws.
This contention is a variation on the expressio unius argument just considered and rejected. It depends on the assumption that these scattered provisions of the Constitution—i.e., adding the people's right to place initiatives and referenda on the ballot to the Legislature's duty to place certain matters on the ballot—define the exclusive list of matters the electorate may vote on. But there is no reason to infer provisions governing what the people may put on the ballot, and what the Legislature must put on the ballot, limit the wholly separate category, what the Legislature may put on the ballot. Expressio unius est exclusio alterius has no interpretive force here.
Howard Jarvis and the dissent contend that if, under American Federation of Labor v. Eu, supra, 36 Cal.3d at 697, 206 Cal.Rptr. 89, 686 P.2d 609, the people are limited to placing on the ballot only proposed laws, then the Legislature must be too. We reject that argument as well. Our decision in Eu defined limits on the initiative power, not limits on what the Legislature might do or limits on the proper use of the ballot. Indeed, we explicitly recognized that the Legislature's powers were broader than those conveyed by the initiative power: “Even under the most liberal interpretation, however, the reserved powers of initiative and referendum do not encompass all possible actions of a legislative body.” (Id. at p. 708, 206 Cal.Rptr. 89, 686 P.2d 609.) When the people established the Legislature, they conveyed ***754 to it the full breadth of their sovereign legislative powers. (Nougues v. Douglass, supra, 7 Cal. at p. 69.) When they adopted the initiative power in 1911, they restored to themselves only a shared piece of that power. (See Eu, at p. 708, 206 Cal.Rptr. 89, 686 P.2d 609.) There is nothing incongruous in reading the state Constitution as allocating broader powers to the deliberative body representing the people than to the people directly. Such is the nature of a republic. (See generally U.S. Const. art. IV, § 4 [guaranteeing a republican form of government]; Browne, Rep. of Debates in Convention of Cal. on Formation of State Const. (1850) pp. 393–394 [noting the fundamentally republican nature of the state Constitution]; 1 Willis & Stockton, Debates & Proceedings, Cal. Const. Convention 1878–1879, p. 242 [the state Constitution implicitly establishes a republican form of government].)
Of course Eu of itself does not establish that the Legislature has the specific authority to ask an advisory question about a federal constitutional amendment where the people might lack the power to opine unilaterally on the same matter; that issue, central to this case, was far afield from the question in Eu. The point, rather, is that nothing in Eu forbids this understanding, while the substantially broader powers assured the Legislature by the federal Constitution's article V and the state Constitution's article IV, section 1, in contrast to the narrower powers restored to the people by the latter section and the state Constitution's article II, section 8, support it.
Nor, contrary to the concern of our concurring colleague Justice Liu, does recognizing that the Legislature may pose an advisory question about constitutional matters impermissibly restore to the people a power constitutionally forbidden them. The state Constitution does not prohibit the people from speaking on such questions at the ballot box; it simply fails, in article II, section 8, as construed in Eu, to authorize their doing so unilaterally. That they may not speak when, pursuant to sources of constitutional power outside article II, section 8, they are asked, does not follow.
4. Accountability
Finally, Howard Jarvis argues the state Constitution contains an implicit structural barrier to the use of advisory questions by the Legislature. It asserts new laws may come into being by legislative enactment, with no participation by the people, or they may come into being by initiative, with no involvement from the Legislature (Cal. Const. art. II, § 8; id., art. IV, § 1), and in each instance, accountability for a given law is clear. Advisory questions on legislative matters, in contrast, would supposedly blur lines of accountability and hamper the ability of voters appropriately to evaluate their representatives **647 at the ballot box: should they be held responsible for a particular legislative action pre-approved by the electorate, or not?
As an initial matter, we note our system of government is one in which the lines of accountability are inevitably blurred to some extent. In a representative democracy, legislators are generally expected to be responsive to their constituents. If a representative votes in favor of a legislative measure that tracks the results of an advisory ballot measure, a voter may not be able to know if the representative is voting his or her own conscience or instead is following the views of a majority of the representative's constituents. But even in the absence of an advisory measure, questions will sometimes arise as to whether a representative's vote on a particular matter is based on the representative's individual ***755 views or instead reflects those of his or her constituents, as embodied in polls or other gauges of public sentiment.
Moreover, our state Constitution guarantees to the people “the right to instruct their representatives.” (Cal. Const. art. I, § 3, subd. (a).) Although this court has not had occasion to delineate the bounds of that right, its very existence is telling.
Instructions are a practice borrowed from England. They were employed frequently in the colonies as a formal means for the represented to communicate their views to representatives. (See generally Kruman, Between Authority & Liberty, supra, at pp. 76–81; Wood, The Creation of the American Republic 1776–1787 (1998) pp. 189–190; Terranova, The Constitutional Life of Legislative Instructions in America (2009) 84 N.Y.U. L.Rev. 1331, 1333–1339.) For example, states delivered instructions to their delegates in connection with the issuance of the Declaration of Independence, during the period of the Articles of Confederation, and to guide deliberations at the 1787 Constitutional Convention. (Kobach, May “We the People” Speak?: The Forgotten Role of Constituent Instructions in Amending the Constitution (1999) 33 U.C. Davis L.Rev. 1, 38–58.) Views varied as to their compulsory nature; while English legislators had increasingly taken the position that instructions were precatory, some Americans in the colonial period treated them as more binding. (Kruman, at pp. 76–77; Terranova, at pp. 1333–1339; Kobach, at pp. 30–37.) A right to instruct congressional representatives was proposed as an addition to the draft First Amendment, but ultimately foundered on uncertainty over the effect to be given instructions, among other concerns. (1 Annals of Congress, supra, at pp. 760–776.)
Unlike the federal Constitution, the state Constitution has codified a right to instruct since before statehood. (See Cal. Const. of 1849, art. I, § 10 [“The people shall have the right freely to assemble together, to consult for the common good, to instruct their representatives, and to petition the Legislature for redress of grievances.”].) Its incorporation into the state Constitution was accompanied by many of the same fundamental debates seen at the federal level in connection with the omission of the right from the First Amendment—Are representatives independent or agents? Do they represent the constituents of their district or the entire state/country? If a right to instruct were granted, would instructions be binding?—but the state convention ultimately struck a balance in favor of, rather than against, a right to instruct. (See Browne, Rep. of Debates in Convention of Cal. on Formation of State Const., supra, at pp. 42, 294–297.)
That right clouds to some extent the attribution of responsibility for representative actions. If instructions are given and disobeyed, no accountability problem arises; plainly the representative has voted his or her conscience, and the electorate may provide, if it chooses, the same response that met Edmund Burke. But if the representative **648 acts in a manner consistent ***756 with instructions, then observers may reasonably ask whether the representative was acting according to his or her personal choice or simply following instructions. The constitutional right of the people to instruct their representatives thus blurs, to some degree, the lines of accountability for representative actions.
What has been the nature of these local advisory measures? They have mirrored the types of statewide policy inquiries described above, with a special focus on specific issues of local importance and within the local legislature's authority to act. Typical have been, for example, questions concerning the conduct of local elections. The City of Modesto has asked its voters: Should city council members be elected by district, or at large? The City of Davis has asked: Should city council elections be conducted pursuant to “choice voting” (also known as “instant runoff” or “preference” voting)? The City of Lancaster has asked: Should the city adopt an ordinance consolidating municipal elections with countywide school district elections?
In any event, whatever the general merits of the concern that advisory ballot measures blur accountability, the concern is less significant in the context of a measure such as Proposition 49 relating to federal constitutional amendment. Responsibility for the ultimate action sought, a proposed federal amendment, lies not with the Legislature or the people of California, but with the members of Congress, the entity constitutionally charged with proposing amendments. To the extent individual state legislators must be accountable for their role in steps leading to an amendment, they may be judged for their votes on the earlier resolution seeking a convention and on the bill placing the advisory question on the ballot.
C. Conclusion
The federal Constitution is our nation's fundamental charter and the source of its supreme law. Only supermajorities of the people's representatives and the several states can alter the course it sets for our country. (See U.S. Const. art. V.) Over the last century and more, state legislatures have seen fit to resort to the ballot box for guidance on whether to propose or ratify potential federal constitutional amendments. This past use of advisory questions to inform the federal constitutional process evidences a larger truth—a recognition of the particular appropriateness of consulting the polity in the course of exercising independent judgment with respect to such foundational matters.
That truth draws its strength from “the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.” (Arizona State Legislature v. Arizona Indep. Redistricting Comm'n (2015) 576 U.S. ––––, ––––, 135 S.Ct. 2652, 2671, 192 L.Ed.2d 704, 729–730.) If that be so, there can be little complaint with a legislature, before pursuing constitutional change, seeking to obtain from the people of the state “the deliberate sense of the community.” (The Federalist No. 71, supra, at p. 482 (Hamilton).) Moreover, the solemnity of the matter to be considered justifies obtaining popular input through an equally solemn formal vote, rather than a mere opinion poll or other unofficial solicitation of views. While Hamilton (and many others) objected to binding instructions from the people, no similar constitutional objections attach to purely advisory votes. Legislators may solicit and consider the views of the people on fundamental matters pertaining to federal constitutional amendments, while at the same time remaining free ultimately to act differently after due deliberation with fellow members of their representative body. The Legislature possesses broad discretion, when conducting an investigation under its implied state constitutional authority, “to select the means within reasonable bounds.” (Parker v. Riley, supra, 18 Cal.2d at p. 91, 113 P.2d 873.) We conclude the enactment of a statute placing an advisory question on the ballot in order to investigate popular sentiment on a matter of federal constitutional dimension falls within that discretion.
Our concurring colleague, Justice Liu, expresses concern that we, like the Legislature, have rested authority for the advisory question here on the investigative power rather than on the plenary lawmaking power alone. (Conc. opn. of Liu., J., post, ***757 196 Cal.Rptr.3d at 803–804, 363 P.3d at 687–688.) He argues that the lawmaking power and power to enact statutes are coextensive, and resort to any other power to justify a statute would raise doubts about the plenary nature of the lawmaking power. This line of argument confuses the form of legislative action—statute, resolution, something else—with the nature of the underlying power justifying the exercise of that action—lawmaking power, investigative power, ratifying power, something else. Though the lawmaking power may be exercised only by statute (Cal. Const. art. IV, § 8, subd. (b)), we have never held the converse, that every statute may be justified only as an exercise of the lawmaking **649 power. When California joined the wave of states enacting statutes governing the ratifying conventions for the Twenty-first Amendment (ante, at 741, 363 P.3d at 635–636), its actions were not authorized by its general lawmaking powers alone, but pursuant to an implied article V power to regulate the procedures for that one-time only event. Justice Liu likewise would justify enactment of the statute here based not on the naked power to make laws, but on an implied article V power, albeit while adopting an unduly restrictive understanding of state legislative powers. Neither that explanation nor ours places in any doubt the plenary nature of the Legislature's lawmaking power.
Justice Liu also expresses concern that the means of investigation selected here is unlike the methods expressly addressed in previous cases. But novelty alone is no basis for imposing a categorical constitutional barrier where none otherwise exists. Here, as we have discussed, none does.
IV.
The Nexus Between Proposition 49 and the Exercise of Powers Related to Federal Constitutional Amendment
Having concluded the Legislature may use advisory ballot questions to facilitate the exercise of its article V functions, we next consider whether the specific measure before us, Proposition 49, is a reasonable exercise, not barred by any law, of the Legislature's power to investigate and determine the best course of action in connection with a potential federal constitutional amendment. Howard Jarvis contends that because the Legislature has already submitted to Congress a call for a national convention, no further purpose can be served by a ballot measure. We disagree.
In evaluating the connection between Proposition 49 and the Legislature's powers, we are mindful of our limited role. “ ‘It is no small matter for one branch of the government to annul the formal exercise by another and coordinate branch of power committed to the latter, and the courts should not and must not annul, as contrary to the constitution, a statute passed by the Legislature, unless it can be said of the statute that it positively and certainly is opposed to the constitution.’ ” ( Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 692, 97 Cal.Rptr. 1, 488 P.2d 161.) “[A]ll intendments favor the exercise of the Legislature's plenary authority: ‘If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action.’ ” (Id. at p. 691, 97 Cal.Rptr. 1, 488 P.2d 161.) Nor, in holding up the Legislature's actions to the light of the Constitution, will we inquire into underlying motives; our review is confined to determining whether an action itself is at odds with constitutional imperatives. (City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 913, 120 Cal.Rptr. 707, 534 P.2d 403; County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, 727, 119 Cal.Rptr. 631, 532 P.2d 495.) ***758 If any reasonable connection between the proposed ballot measure and the Legislature's article V-related powers is discernable, it will suffice.
**657 Other measures have probed the voters' policy preferences concerning a variety of miscellaneous local matters. The City of Milpitas has asked: Should the city council submit to the voters a proposal to revise the city charter in various ways, including enlarging the city council? The City of National City has asked: Should the city council establish a Citizens' Police Oversight Commission? The City of South Gate has asked: Should the city council enact a permit system regulating the number of vehicles that may be parked overnight? The City of Half Moon Bay has asked: Should the city adopt a policy of employing its powers of eminent domain only when the stated “public use” is not “primarily ... based on the City's desire for ‘increased City revenue’ ”?
We conclude there is a sufficient nexus between Proposition 49 and, at a minimum, the potential exercise of every one of the Legislature's amendment powers. For the **650 legislators of a state collectively to call on Congress for a federal amendment, or to call for a national convention, is one matter. For the people of a state, by the millions, to vote in favor of pursuing an amendment is another. The 1892 plebiscite concerning direct election of senators yielded a resounding 93 percent to seven percent majority in favor of constitutional change. (Rossum, California and the Seventeenth Amendment in The California Republic, supra, at p. 84.) The Legislature rationally could believe that a decisive result in the present day might carry more weight with members of Congress, when deciding whether to propose or vote in favor of an amendment, and with other state legislatures, in their deliberations over whether to join California's call for a constitutional convention, than the Legislature's call alone. Election results might also inform the Legislature's decision whether to formally supplement its convention call with a joint resolution asking Congress to propose an amendment, just as both methods of soliciting amendment were employed in the late 19th and early 20th century in connection with senatorial selection and in 1935 in connection with tax reform. (Ante, 196 Cal.Rptr.3d at 742–743, 363 P.3d at 636–638.) Finally, if either Congress or a national convention were to propose an amendment, a plebiscite would inform the Legislature's decision on ratification. (See Idaho Sen. J. ***759 Res. No. 101 (50th Leg., 1st Reg.Sess.1989), reprinted in 101 Cong. Rec. S7911 (daily ed. July 13, 1989) [ratifying the 27th Amend. following solicitation of a popular vote].)
***767 Many other advisory measures have addressed housing, development, and related public service issues. For example, the City of San Diego has asked: Do the voters endorse development of up to 5,000 low-rent apartments and townhomes scattered throughout the city? The City of Modesto has asked: Should the city council expand sewer service to certain areas? Los Angeles County has asked: Should a new flood control district be formed, or should an existing area be annexed to a current county flood control district?
Numerous local advisory measures have inquired about specific land-related developments. For example, Siskiyou County has asked: Should certain river dams and associated hydroelectric facilities be removed? Imperial County has asked: Should the county create a new regional international airport to replace or augment the services provided by the county's existing international airport? The City of Hawthorn has asked: Should certain public lands be sold to generate general **658 or earmarked revenue? Still others have ***768 asked about gaming and related issues. For example, the City of Calexico has asked: Should a local ordinance give a city authority to negotiate agreements with Native American tribes concerning development and operation of gaming and entertainment resorts? 19
Moreover, even a result at the ballot box rejecting the proposal could afford material assistance to the Legislature in determining how to exercise its article V-related powers. Although the Legislature has already called for a constitutional convention, “[w]hat the Legislature has enacted, it may repeal.” (California Redevelopment Assn. v. Matosantos, supra, 53 Cal.4th at p. 255, 135 Cal.Rptr.3d 683, 267 P.3d 580; see Fletcher v. Peck (1810) 10 U.S. (6 Cranch) 87, 135, 3 L.Ed. 162 [“one legislature is competent to repeal any act which a former legislature was competent to pass”].) Nothing in the text of article V establishes an intent to depart from this fundamental understanding about the nature of legislative bodies and to afford Congress and state legislatures only the power to make, but never to withdraw, proposals. Indeed, the logic of the amendment process the Article establishes urges strongly to the contrary. Convention calls take effect only when a supermajority, two-thirds of the legislatures, have joined in. A national consensus is a foundational necessity. To allow the making of calls, but not their subsequent negation, might place Congress under orders to call a convention when far fewer states, perhaps not even a majority, presently favored amendment. It follows that convention calls are not static; they can be, and as a matter of historical practice frequently have been, rescinded. (See, e.g., Nev. Assem. Res. No. 157 (1989 Reg. Sess.), reprinted in 101 Cong. Rec. S7911 (daily ed. July 13, 1989) [rescinding convention call]; Kyvig, Explicit & Authentic Acts, supra, at p. 378 [noting N.C. and Okla. rescissions of convention calls]; Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment (1993) 103 Yale L.J. 677, 765–789 [cataloguing both state-by-state convention calls and their repeals].) The Legislature has called for a national convention; it might, upon sober and mature **651 reflection informed by popular disapproval at the ballot box, reconsider and rescind as unwise that resolution.
Illustrative of the relevance an advisory vote can have even after a legislature has acted is the case of the Massachusetts legislature's 1924–1925 change of heart on the question of a child labor amendment. In 1924, Massachusetts was among those states petitioning Congress for submission of a constitutional amendment to the states to overturn United States Supreme Court decisions limiting Congress's regulatory power over child labor. However, when Congress complied and proposed an amendment, the state's legislature did not immediately act but instead submitted the question of ratification to a November 1924 advisory vote of the people. The plebiscite demonstrated widespread popular opposition, with the amendment losing by more than three-to-one. Taking those views into account, the legislature reversed its support from the year before and declined to ratify the amendment. (Kyvig, Explicit & Authentic Acts, supra, at pp. 259–260.) So too, an advisory vote may guide a legislature in deciding whether to persist with efforts to obtain, or rescind a call for, a national convention or congressionally proposed federal amendment.
Accordingly, we conclude Proposition 49 is a reasonable and lawful means of assisting the Legislature in the discharge of its article V-related functions. Howard Jarvis has identified no constitutional obstacle. Proposition 49's placement on a statewide ballot may be upheld as an exercise of the Legislature's implied power under the California Constitution to investigate ***760 and determine the best course of action in connection with a potential federal constitutional amendment.
Disposition
We discharge the order to show cause, deny Howard Jarvis's petition for a peremptory writ of mandate, and vacate our previously ordered stay.
WE CONCUR: CANTIL–SAKAUYE, C.J. CORRIGAN, CUÉLLAR, and KRUGER, JJ.
Concurring Opinion by CANTIL–SAKAUYE, C.J.
As the majority observes, I dissented from this court's August 2014 order removing an advisory measure, designated Proposition 49, from California's November 2014 general election ballot. My vote was based on my conclusion that petitioners had failed to make a sufficient showing of the invalidity of the challenged measure to warrant removing it from the ballot.
The court's opinion, arrived at following full briefing, oral argument, and extensive deliberation, concludes that the Legislature properly exercised its authority in enacting the statute submitting that advisory measure to a vote of the statewide electorate. The decision upholds the Legislature's enactment as a permissible means of investigating policy options regarding the Legislature's exercise of authority under article V of the federal Constitution concerning a possible amendment to the federal Constitution. In the process the majority rejects the contrary arguments of petitioners. I agree with the majority's conclusion that, after full consideration, the challenged measure is valid and that petitioners' objections fail. Accordingly, I have signed the majority opinion.
I write separately to avoid any misunderstanding or implication that legislatively authorized advisory ballot measures are permissible only concerning the narrow universe of matters relating to the Legislature's role under article V of the federal Constitution (sometimes, article V). As I will explain, legislative authority to pose advisory ballot questions has long been properly employed—by our own Legislature, by the legislatures of numerous other states, and by local legislative bodies (such as county boards of supervisors and city councils) throughout California and the nation—to obtain the views of the voters concerning all manner of subjects reasonably within a legislative body's authority to act. Nothing in today's decision should be viewed as calling into question the validity of all types of statewide and local advisory ballot measures, even those completely unrelated to any proposed amendment to the federal Constitution.
**652 Before addressing the legal principles and precedent supporting the Legislature's general authority to submit advisory measures to a vote of the people, it is useful to review in some detail the long-standing historical and recent practice demonstrating that legislatively initiated advisory ballot measures have been used regularly and extensively concerning a wide variety of subjects both within California and nationwide. This considerable use of advisory ballot measures may not be as well known within the legal community or among the general public as it perhaps should be, but this practice is important to keep in mind when the question of the permissible scope of advisory ballot measures is considered.
I. Legislative Use of General Advisory Ballot Measures in California and Nationwide, Unconnected with Any Article V Role or Related Issue
A. Seven prior advisory policy measures submitted to California's statewide electorate
As section 2, subdivision (m) of the challenged statute (Stats.2014, ch. 175) itself ***761 observes, ballot measures seeking the nonbinding advisory views of the voters have been used in the past in this state. On seven prior occasions the Legislature has submitted advisory ballot measures to the statewide voters, most of them unconnected to any effort to amend the federal Constitution. And, like the statute currently under review, when the Legislature's questions pertained to issues over which the federal government has ultimate control, the measures have directed that the ballot results be conveyed to Congress.
The first advisory ballot measure in California—an ugly reflection of its times, asking the statewide voters whether they were “ ‘[f]or’ ” or “ ‘[a]gainst’ ” Chinese immigration—was submitted to California voters by the Legislature in 1877 (Stats.1877, ch. 5, p. 3), and appeared on the statewide general election ballot in September 1879, just a few months after the voters had approved a newly proposed state constitution at a special election in May 1879. That advisory measure required, similarly to the one at issue here, that the result of the balloting be conveyed to Congress. (Stats. 1877, ch. 5, §§ 2 & 3, p. 3.)
The next two advisory ballot measures were presented to the statewide voters in 1892. One implicated the Legislature's article V role—it sought the electorate's views concerning whether the federal Constitution should be amended (as it eventually was, more than two decades later) to provide for direct election of United States Senators. That advisory measure required, again similarly to the one at issue here, that the result of the balloting be conveyed to Congress. (Stats.1891, ch. 48, § 3, p. 46.) The second advisory measure of that year asked whether the ability to read and write in English should be a requirement for voting in the state. (Stats.1891, ch. 113, pp. 704–705.)
As explained in the majority opinion (ante, 196 Cal.Rptr.3d at 746–747, 363 P.3d at 640–641), in 1909, and again in 1911—both prior to adoption of the Seventeenth Amendment to the federal Constitution—our Legislature, like those in numerous other states, asked voters to give their advice at the ballot box concerning which candidate the Legislature should appoint as United States Senator. (Stats.1909, ch. 405, § 2, p. 691; Stats.1911, ch. 387, § 1, pp. 705–705.) And in 1933, the Legislature posed to the statewide electorate two advisory ballot questions concerning the use of gasoline tax funds. (Stats.1933, ch. 435, pp. 1125–1126.)
B. Other states' submission of advisory measures to their statewide electorates
Dating initially from the late 1700s, and with growing use in the mid 1800s, the legislatures of other states have sought the advice of their statewide voters on all kinds of matters unconnected with any article V issue and yet within the legislature's authority to act—ranging from whether to allow the establishment of banks, to abolition of forced labor by prisoners, to suffrage for women. (Goldman, The Advisory Referendum in America (1950) 14 Pub. Opinion Q. 303, 305–308 [describing the use of advisory measures in colonial times and in statewide 19th-century ballot measures in Mass., Ala., Wis., Nev., and **653 N.Y.]1 (hereafter The Advisory Referendum ).)
***762 The use of such advisory and nonbinding ballot measures has continued nationwide in the intervening decades. For example, the Massachusetts Legislature put 12 advisory measures on the ballot from 1919 to 1998, and the Wisconsin Legislature placed 20 such measures on the ballot between 1948 and 1995. (Zimmerman, The Referendum (2001) p. 62.)
Focusing only on the most recent four decades, advisory measures wholly unconnected with any article V role have been placed on the statewide ballot by 12 state legislatures, all of which operate under constitutions similar to California's, in that none contains any provision specifically authorizing such legislative action. These most recent examples of statewide ballot measures have posed to the statewide voters the following policy questions addressing myriad issues coming within the legislature's authority to act.
Alaska: Should the legislature propose an amendment to the state constitution prohibiting the state from providing employment benefits to same-sex partners of public workers? Should a portion of the Alaska Permanent Fund be used to balance the state budget? Should the legislature revise the state's annuity program by adopting a longevity bonus for those 65 and older? Should the Legislature adopt a resolution placing before the voters an amendment to the state constitution calling for regular legislative sessions to be 120 days long with the possibility of a 10–day extension upon a majority vote?2
Delaware: Do the voters favor allowing the state to license various charitable organizations to sponsor and conduct lotteries under certain conditions? Do the voters favor state regulated and controlled slot machines?3
Idaho: In light of the fact that the United States Supreme Court ruled that the state's term limits law does not apply to members of Congress, should that law continue to apply to state elective offices? Should the state maintain previously adopted property tax relief, reducing property taxes and protecting funding for public schools, by keeping the sales tax at 6 percent?4
***763 Illinois: Should any health insurance plan that provides prescription drug coverage be required to include prescription birth control as part of that coverage? Should the state increase its minimum wage to $10 per hour by a certain date? Should the state constitution be amended to require that each school **654 district receive additional revenue, based on its number of students, from an additional 3 percent tax on income greater than $1 million?5
Massachusetts: Should taxpayer money be used to fund political campaigns for public office? Should the commonwealth require that radio and TV broadcast outlets give free equal time to all candidates running for public office? Should the commonwealth change the legal age for consuming alcohol from 21 to 18? Should voluntary recitation of prayer be authorized in the commonwealth's public schools?6
Nevada: Should the state designate the third to last Friday in October as a new Nevada Day holiday, replacing a holiday long declared by the Legislature to fall on October 31?7
Oregon: Should the state change the system for funding public schools in various ways specified in a menu of options, concerning income, property, and sales taxes, presented in four separate advisory measures?8
Vermont: Should the legislature consider enactment of a lottery to supplement state revenues? Should the state hold a constitutional convention?9
Wisconsin: Should the death penalty be enacted in the state for cases involving first-degree intentional homicide if the conviction is supported by DNA evidence? Do the voters favor restrictions on gambling, or new forms of gambling, or continuation of existing forms of gambling, as ***764 described in five separate advisory measures? Should local control over vocational, technical and adult education be changed to state control, with funding paid out of state tax revenues, instead of principally from local property tax revenues? Do the voters favor greater state aid to municipalities for accelerated water pollution abatement facilities through the issuance of bonds? Do the voters favor expanding state acquisition and development of land for recreational purposes through the issuance of bonds?10
**655 Less frequently during the same most recent four decades, legislatures nationwide also have continued to exercise their traditional powers by seeking the advisory views of the electorate concerning, not a possible law or state constitutional amendment, but instead connected with the legislature's authority to issue policy resolutions directed toward the federal government.
IV. Conclusion
For the forgoing reasons, and with the caveat that nothing in today's decision should be viewed as calling into question the validity of statewide and local advisory ballot measures that are unrelated to any proposed amendment to the federal Constitution, I concur in the majority's opinion and disposition.
Concurring Opinion by CORRIGAN, J.
With the benefit of time to fully consider the issues presented by this writ petition, which go to the fundamental structure of our state government, I agree with and join the majority opinion. Proposition 49 is a valid exercise of the Legislature's investigatory authority under the California Constitution. I also agree with the Chief Justice that the Legislature's power to submit advisory measures to the electorate is not limited to its role in the process of amending the federal Constitution. For the reasons stated by the Chief Justice, advisory measures that are reasonably related to any proper use of legislative power are permissible.
Both the majority opinion and the Chief Justice's concurrence appropriately emphasize that judicial review of the Legislature's exercise of its plenary powers must be restrained. Doubts should be resolved in favor of legislative action, and constitutional limitations on legislative authority strictly construed. (Maj. opn., ante, 196 Cal.Rptr.3d at 757, 363 P.3d at 649; conc. opn. of Cantil–Sakauye, C.J., ante, at 774–775, 363 P.3d at 663–664.) The foundations of these limits on the judicial function were soundly explained by Justice Sparks of the Third District Court of Appeal in Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 70 Cal.Rptr.2d 745. I place great weight on the following considerations:
**671 “The principle of strict construction arises from the very nature of California's tripartite form of government. Thus, subject to the reserved powers of initiative and referendum, ‘[t]he legislative power of this State is vested in the California Legislature....’ (Cal. Const. art. IV, § 1.) The people, in their Constitution, may place restrictions upon the exercise of the legislative power by the Legislature but the courts may not do so without violating the fundamental separation of powers doctrine. Judicial application of clear and unequivocal constitutional restrictions on the Legislature's authority merely enforces the people's exercise of the right to place restrictions upon the Legislature. On the other hand, legislative restraint imposed through judicial interpretation of less than unequivocal language would inevitably lead to inappropriate judicial interference with the prerogatives of a coordinate branch of government. Accordingly, the only judicial standard commensurate with the separation of powers doctrine is one of strict construction to ensure that restrictions on the Legislature are in fact imposed by the people rather than by the courts in the guise of interpretation.” (Schabarum v. California Legislature, supra, 60 Cal.App.4th at pp. 1217–1218, 70 Cal.Rptr.2d 745.)
***784 Concurring Opinion by LIU, J.
The question presented in this case is “whether the Legislature may pose to the electorate a single advisory question concerning the People's support for a federal constitutional amendment.” (Maj. opn., ante, 196 Cal.Rptr.3d at 744, 363 P.3d at 638.) The court answers yes to this narrow question and goes no further, “reserv[ing] for another day whether, in support of other powers not implicated here, an advisory ballot measure would be a permissible means of legislative investigation.” (Id. at 744, fn. 11, 363 P.3d at 638, fn. 11.) With this limited holding, I concur.
The court's reasoning in support of this result includes an informative survey of relevant constitutional history, and I agree that a “ ‘page of history is worth a volume of logic’ ” where, as here, the issue presented is novel and implicates basic questions about governmental structure and constitutional change. (Maj. opn., ante, 196 Cal.Rptr.3d at 744, 363 P.3d at 638, quoting New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963; cf. National Labor Relations Bd. v. Noel Canning (2014) 573 U.S. ––––, ––––, ––––, 134 S.Ct. 2550, 2559–2560, 189 L.Ed.2d 538 (Noel Canning ).) But today's opinion goes astray when it invokes or, more accurately, expands the Legislature's investigative power in order to uphold the advisory ballot measure at issue here. (Maj. opn., ante, at 738–740, 363 P.3d at 633–635.) This theory is unnecessarily broad and could be read as an invitation for the Legislature to test the waters with future advisory ballot measures on a wide range of issues having nothing to do with a federal constitutional amendment. The Chief Justice would make that invitation explicit. In her view, the Legislature may use advisory ballot measures “in order to obtain the voters' policy views with regard to any potential action that the Legislature has authority to undertake.” (Conc. opn. of Cantil–Sakauye, C.J., ante, at 775, 363 P.3d at 664; accord, conc. opn. of Corrigan, J., ante, at 783, 363 P.3d at 670.) As I explain below, such wide-ranging use of advisory ballot measures is not authorized by our state Constitution and would potentially reshape the way electoral politics and policymaking are conducted in California. We should not take liberties with the careful structure of republican democracy that the framers of our Constitution have built and bequeathed to us.
I would not rely on the Legislature's investigative power in reaching today's result. Senate Bill No. 1272 is an effort by the Legislature to marshal the solemn voice of the people of California in support of a federal constitutional amendment. Article V of the United States Constitution assigns state legislatures a special role in facilitating and promoting constitutional change. I would simply hold that Senate Bill No. 1272 is a reasonable exercise of the Legislature's implied power under article V.
I.
Senate Bill No. 1272 is titled the “Overturn Citizens United Act.” (Stats.2014, ch. 175, **672 § 1.) In enacting this statute, the Legislature declared that the United States Supreme Court's decision in Citizens United v. Federal Election Commission (2010) 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 “presents a serious threat to self-government by rolling back previous bans on corporate spending in the electoral process and allows unlimited corporate spending to influence elections, candidate selection, policy decisions, and public debate.” (Stats.2014, ch. 175, § 2, subd. (e).) It further declared that “Article V of the United States Constitution empowers and ***785 obligates the people of the United States of America to use the constitutional amendment process to correct those egregiously wrong decisions of the United States Supreme Court that go to the heart of our democracy and the republican form of self-government.” (Id., subd. (l ).) The statute directed the Secretary of State to submit to the voters an advisory question (Proposition 49) asking whether Congress should propose and whether the Legislature should ratify a constitutional amendment overturning Citizens United, and to report the results to Congress. (Stats.2014, ch. 175, § 4, subds. (a), (b).) As all members of the court agree, the substantive merits of Citizens United and Proposition 49 are irrelevant to the question in this case.
Amending the federal Constitution is a difficult task, successfully accomplished only 27 times in our nation's history. To secure approval for a constitutional amendment, a political movement must convince an extraordinary number of citizens to take the movement's aims more seriously than they do most issues of ordinary government. This was by design. By making the process of constitutional change more “unwieldy and cumbrous” than ordinary lawmaking (Barron v. Mayor of Baltimore (1833) 32 U.S. 243, 250, 7 Pet. 243, 8 L.Ed. 672), article V of the federal Constitution serves as a bulwark against the whims of bare legislative majorities and ensures that rules entrenched in the “supreme law of the land” (U.S. Const. art. VI) represent the considered and collective judgments of the people of the United States. Senate Bill No. 1272 is a statute enacted in furtherance of the federal constitutional amendment process.
A.
Article V of the federal Constitution provides in relevant part: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress....” As this text makes clear, article V assigns key roles to state legislatures at the proposal and ratification stages of the federal constitutional amendment process.
Challenges to the manner in which state legislatures have exercised their article V powers have almost always been rejected. In Hawke v. Smith, No. 1 (1920) 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (Hawke ), the Ohio General Assembly adopted a resolution ratifying the proposed Eighteenth Amendment to the federal Constitution. A voter then filed a referendum petition calling for a special election to approve or reject the amendment. A different voter brought suit to enjoin state officials from complying with the referendum petition. The high court held that the referendum could not proceed, explaining: “The only question really for determination is: What did the framers of the Constitution mean [in article V] in requiring ratification by ‘Legislatures'? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation.” (Hawke, at p. 227, 40 S.Ct. 495.) Subjecting the ratification decision to a referendum would violate article V's allocation of ratification authority to state legislatures. (Hawke, at p. 231, 40 S.Ct. 495; accord, Barlotti v. Lyons (1920) 182 Cal. 575, 577, 189 P. 282; Prior v. ***786 Noland (1920) 68 Colo. 263, 188 P. 729, 731.)
In Leser v. Garnett (1922) 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (Leser ), the plaintiff **673 argued that the Nineteenth Amendment to the federal Constitution was invalid because the legislatures of several states had violated state constitutional provisions in ratifying the proposed amendment. The high court disagreed on the ground that state legislatures have authority to exercise their article V functions as they see fit, free from interference by the “limitations sought to be imposed by the people of a State.” (Leser, at p. 137, 42 S.Ct. 217.)
More recent decisions are in accord. Walker v. Dunn (Tenn.1972) 498 S.W.2d 102 (Walker ) involved a provision of the Tennessee Constitution prohibiting the state legislature from acting on any federal constitutional amendment unless the legislature had been elected after submission of the amendment. The Tennessee Supreme Court upheld the state legislature's ratification of the Twenty-sixth Amendment, even though the legislature did not wait until the election cycle following submission. The court concluded that the state constitutional provision was “a limitation upon the General Assembly of Tennessee in the exercise of its federally derived power” and accordingly was invalid. (Walker, at p. 106; see Trombetta v. Florida (M.D.Fla.1973) 353 F.Supp. 575, 577–578 (Trombetta ) [invalidating similar Fla. constitutional provision].)
In Dyer v. Blair (N.D.Ill.1975) 390 F.Supp. 1291 (Dyer ), the court considered a provision of the Illinois Constitution, as well as rules adopted by Illinois's legislature, that required a three-fifths majority vote to ratify an amendment to the federal Constitution. Each house of the legislature had approved the proposed Equal Rights Amendment by a vote of more than a majority but less than a three-fifths supermajority. The court observed that the framers of the federal Constitution had a “basic understanding that state legislatures should have the power and the discretion to determine for themselves how they should discharge the responsibilities committed to them by the federal government.” (Dyer, at p. 1307.) The court then explained that because the “delegation [in article V] is not to the states but rather to the designated ratifying bodies,” state constitutional restrictions on the legislature's decisionmaking were invalid. (Id. at p. 1308.) The court held, however, that the majority vote in favor of ratifying the Equal Rights Amendment was insufficient because each house had concluded for itself that only a 60 percent supermajority would suffice. (Id. at pp. 1308–1309.)
Subtler attempts at cabining the discretion of the state legislatures when performing their article V functions have also been rejected. In American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 206 Cal.Rptr. 89, 686 P.2d 609, we considered various state and federal challenges to an initiative advocating a federal balanced budget amendment. Among other provisions, the initiative proposed to suspend the compensation and benefits of state legislators who would not take specific actions to support a balanced budget amendment. (Id. at pp. 692–693, 206 Cal.Rptr. 89, 686 P.2d 609.) We invalidated this aspect of the initiative on the ground that it would coerce state legislators to take actions in support of a particular constitutional amendment. (Id. at p. 694, 206 Cal.Rptr. 89, 686 P.2d 609.) Similarly, in Bramberg v. Jones (1999) 20 Cal.4th 1045, 86 Cal.Rptr.2d 319, 978 P.2d 1240 (Bramberg ), we considered whether a voter initiative could require future ballots for the United States Congress to include the statement “Disregarded Voters' Instruction on Term ***787 Limits” next to the names of incumbents who did not support a federal term limits amendment in the previous session. (Id. at p. 1047, 86 Cal.Rptr.2d 319, 978 P.2d 1240.) We held that the initiative was “impermissibly coercive” and thus violated article V. (Bramberg, at pp. 1060, 1063, 86 Cal.Rptr.2d 319, 978 P.2d 1240.)
In addition to the powers that article V expressly delegates, state legislatures have played a crucial role in achieving the popular mobilization necessary to ratify many of the amendments to the federal Constitution by issuing resolutions to Congress and to other states. Today's opinion recounts numerous examples throughout our nation's history, dating back to the founding era. (Maj. opn., ante, 196 Cal.Rptr.3d at 741–744, 363 P.3d at 636–638.)
State legislatures have also established state conventions when Congress has chosen **674 that method of ratification. As today's opinion recounts, when Congress submitted the Twenty-first Amendment to state conventions, state legislatures across the country enacted legislation establishing how delegates were to be chosen and when and where conventions would meet. (Brown, Ratification of the Twenty-first Amendment to the Constitution of the United States (1938) pp. 521–700 [collecting laws]; see Stats.1933, ch. 149, pp. 598–602 [establishing procedures for Cal. convention to ratify the 21st Amend.].) Courts have found these actions to be within the legislatures' broad discretion to act in connection with the federal constitutional amendment process. (See State ex rel. Donnelly v. Myers (1933) 127 Ohio St. 104, 186 N.E. 918 (Myers ); State ex rel. Tate v. Sevier (1933) 333 Mo. 662, 62 S.W.2d 895, 898 (Sevier ).)
From the discussion above, it is evident that judicial decisions in this area have given state legislatures wide latitude in carrying out their article V functions and taking actions reasonably related to the federal constitutional amendment process. This judicial posture befits the nature of constitutional change. Occasions for amending the federal Constitution are, by design, infrequent and unusual. Each is a separate and solemn moment that requires a political process calibrated to the perceived problem at hand. Courts have recognized that the actors to whom article V delegates authority have broad discretion to address each proposal for constitutional change on an individualized basis. History and precedent suggest a very narrow role for the judiciary in monitoring the federal amendment process.
B.
The texts of the federal and state Constitutions do not address whether the Legislature may place an advisory measure on the ballot asking voters whether they support a federal constitutional amendment. Although we have previously recognized that such an advisory ballot measure “does not offend article V” (American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 707, 206 Cal.Rptr. 89, 686 P.2d 609), no court has confronted the precise question before us. But the historical use of advisory questions in connection with the federal constitutional amendment process sheds light on the issue here. (See Dyer, supra, 390 F.Supp. at pp. 1303–1307 [consulting historical practice to illuminate the scope of state legislatures' article V powers].)
The practice of state legislatures consulting the voters on federal constitutional amendments must be understood in historical context. Since the founding, “the animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government.” ( ***788 Arizona State Legislature v. Arizona State Redistricting Comm'n (2015) 576 U.S. ––––, ––––, 135 S.Ct. 2652, 2671, 192 L.Ed.2d 704.) Because constitutional commitments bind future legislative majorities, cannot be easily undone, and speak on behalf of “the People of the United States” (U.S. Const.pmbl.), the framers repeatedly emphasized the necessity of the people's consent in amending the federal Constitution.
At the state conventions for ratifying the federal Constitution, advocates for ratification repeatedly invoked the sovereign will of the people as the sole ground for amending its terms. In Pennsylvania, James Wilson remarked: “This Constitution ... opens with a solemn and practical recognition ...:—‘We, the people of the United States, in order to form a more perfect union, establish justice, & c., do ordain and establish this Constitution for the United States of America.’ It is announced in their name—it receives its political existence from their authority: they ordain and establish. What is the necessary consequence? Those who ordain and establish have the power, if they think proper, to repeal and annul.” (2 Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (1881) pp. 434–435 (Debates).) In North Carolina, James Iredell similarly observed: “[A]lterations can without difficulty be made, agreeable to the general sense of the people.... Any amendments which either Congress shall propose, or which shall be proposed by such general convention, are afterwards to be submitted to the legislatures of the different states, or conventions called for that purpose, **675 as Congress shall think proper.... By referring this business to the legislatures, expense would be saved; and in general, it may be presumed, [that] they would speak the genuine sense of the people.” (4 Elliot, Debates, at p. 177; see 3 Elliot, Debates, at p. 37 [statement of Edmund Pendleton at the Va. ratifying convention].) It is against this backdrop that state legislatures have regularly used advisory ballot measures in connection with the federal constitutional amendment process.
Today's opinion ably recounts the history of such advisory measures, with examples from a multitude of states concerning a wide range of proposed constitutional amendments from the late nineteenth century to the present day. (Maj. opn., ante, 196 Cal.Rptr.3d at 746–749, 363 P.3d at 639–642.) Challenges to these measures have not succeeded. (Id. at 748–750, 363 P.3d at 641–643.) As the court recognizes (id. at 744–745, 363 P.3d at 638–639), it is appropriate in this case to “put significant weight upon historical practice.” (Noel Canning, supra, 573 U.S. at p. ––––, 134 S.Ct. at p. 2559 (italics omitted).)
This robust body of shared historical practice suggests a common source of legislative authority. As noted, article V of the federal Constitution gives state legislatures a central role in the process of proposing and ratifying federal constitutional amendments. Under article V, the function of state legislatures is to convey to Congress and to other states an expression of the state's sovereign will with respect to federal law of the most fundamental character. Sovereignty ultimately lies in “the supreme authority in each State, the authority of the people themselves” (The Federalist No. 39 (Cooke ed., 1961) p. 254 (Madison)), and the ratification function assigned to state legislatures under article V is intended to elicit “a decisive expression of the people's will” (Dillon v. Gloss (1921) 256 U.S. 368, 374, 41 S.Ct. 510, 65 L.Ed. 994 (Dillon )). In submitting an advisory ballot measure to the electorate, a state legislature acts in furtherance of its article V function by vesting the people's will with a degree of solemnity that cannot be achieved through an opinion poll or ***789 other means, and by ensuring and communicating to others that its support or opposition to a proposed amendment accurately reflects the people's will. (Maj. opn., ante, 196 Cal.Rptr.3d at 755–756, 756–757, 363 P.3d at 647–648, 648–649.) It is no accident that the use of advisory ballot measures by state legislatures has historically clustered around proposals for amending the federal Constitution. “This past use of advisory questions to inform the federal constitutional process evidences a larger truth—a recognition of the particular appropriateness of consulting the polity in the course of exercising independent judgment with respect to such foundational matters.” (Id. at 756, 363 P.3d at 648.) Because it is particularly appropriate for a state legislature exercising its article V function to enlist the people's voice as an aid to expressing the state's sovereign will, the legislature's use of an advisory measure like Proposition 49 is properly understood as an exercise of implied power under article V.
The concept of implied powers under the federal Constitution has been well established since M'Culloch v. Maryland (1819) 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (M'Culloch ), which held (among other things) that Congress had the power to establish a national bank. (Id. at p. 424.) Although M'Culloch is often cited for its interpretation of the necessary and proper clause (M'Culloch, at pp. 411–421), the high court's discussion of that clause appears only after the opinion has already made an affirmative case for Congress's implied power to create the bank (id. at pp. 401–411). M'Culloch 's primary arguments for the constitutionality of the national bank are based not on the necessary and proper clause but on the nature of the federal Constitution itself.
Chief Justice Marshall began the court's opinion by noting that although the Constitution does not enumerate a power to establish a bank, “there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.... The men who drew and adopted [the 10th] amendment had experienced the embarrassments resulting from the insertion of [the word ‘necessary’] in the articles of confederation, **676 and probably omitted it to avoid those embarrassments. A constitution ... requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.” (M'Culloch, supra, 17 U.S. at pp. 406–407.) Unlike the Articles of Confederation, the second article of which had narrowly limited the powers of the Congress of the Confederation to those “expressly delegated,” the 1787 Constitution was meant to constitute a new system of government and to provide only the broad outlines of the powers of its component parts.
M'Culloch went on to say that although the word “bank” or “incorporation” does not appear in the federal Constitution, the enumerated powers of Congress include the powers “to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.” (M'Culloch, supra, 17 U.S. at p. 407.) The court then explained that “it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its ***790 execution, by withholding the most appropriate means.... [¶] It is not denied, that the powers given to the government imply the ordinary means of execution.” (Id. at pp. 408–409.) M'Culloch 's elucidation of implied powers was based on “general reasoning” about the nature of a constitution. (Id. at p. 411; see id. at p. 407 [“we must never forget, that it is a constitution we are expounding”].) Only after upholding Congress's implied power to create the bank did the opinion turn to refuting the objection that the necessary and proper clause is a limitation on, rather than a grant of, congressional power. (Id. at p. 412.)
M'Culloch 's reasoning is not limited to powers granted in article I of the federal Constitution. M'Culloch rests on a general principle that each power enumerated in the federal Constitution may imply other powers necessary to the exercise of the enumerated power. (See The Federalist No. 44, supra, at pp. 304–305 (Madison) [“No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”].) Subsequent decisions have confirmed that this principle of constitutional construction applies to powers other than those assigned to Congress. (See, e.g., Chambers v. NASCO, Inc. (1991) 501 U.S. 32, 43–44, 111 S.Ct. 2123, 115 L.Ed.2d 27 [discussing implied powers of the federal courts]; American Ins. Ass'n v. Garamendi (2003) 539 U.S. 396, 414–415, 123 S.Ct. 2374, 156 L.Ed.2d 376 [discussing implied powers of the President].)
Like articles I, II, and III of the federal Constitution, article V also conveys power as much through “what is reasonably implied” as through “what is expressed.” (Dillon, supra, 256 U.S. at p. 373, 41 S.Ct. 510; see id. at p. 376, 41 S.Ct. 510 [“As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule.” (Fn.omitted.) ].) In the article V context, courts have recognized a variety of implied powers. The high court has held that Congress has the power to place a time limit on ratification of a proposed amendment by the states. (Dillon, at pp. 375–376, 41 S.Ct. 510.) And as noted, when Congress chose the state convention method for ratifying the Twenty-first Amendment, legislatures across the country established the mechanisms by which those conventions would be constituted. In challenges to such actions, state courts held that their legislatures had implied power under article V to establish conventions when Congress elects the convention method of ratification. (See Sevier, supra, 62 S.W.2d at p. 898; Myers, supra, 186 N.E. at p. 918.)
Here the Legislature's briefing contends that “[f]or the people of this state, Proposition 49 represents their only means under article V of the federal Constitution to be **677 heard on this momentous question [i.e., whether Citizens United should be overturned by constitutional amendment]. Elections on advisory ballot questions have been held in a wide variety of other states to ascertain and to formally convey the will of the voters as to whether the U.S. Constitution should be amended in various respects, and the courts have repeatedly upheld the submission of such measures to the electorate. The California Legislature is likewise entitled to seek this input from the voters as a matter ‘incidental and ancillary’ to its constitutional power and responsibility to ratify proposed amendments to the U.S. Constitution.” I would hold that the Legislature has implied power under article V to submit Proposition 49 ***791 to the electorate because the use of an advisory ballot measure uniquely serves to aid the Legislature's expression of California's sovereign will.
As I explain in the rest of this opinion, the Legislature does not have general authority under the California Constitution to submit advisory questions to the electorate. But even if this means the Legislature has no authority under state law to submit an advisory measure on a federal constitutional amendment (see dis. opn., post ), such a limitation must yield to the federal authority that article V confers on the Legislature. As discussed above (ante, 196 Cal.Rptr.3d at 785–787, 363 P.3d at 672–674), courts have consistently invalidated state law limitations, including state constitutional limitations, on a state legislature's exercise of its federal functions under article V. (See Leser, supra, 258 U.S. at p. 137, 42 S.Ct. 217; Hawke, supra, 253 U.S. at p. 231, 40 S.Ct. 495; Dyer, supra, 390 F.Supp. at pp. 1307–1308; Trombetta, supra, 353 F.Supp. at pp. 577–578; Walker, supra, 498 S.W.2d at p. 106.)
Because article V's “delegation is not to the states but rather to the designated ratifying bodies” (Dyer, supra, 390 F.Supp. at p. 1308), state legislatures “have the power and the discretion to determine for themselves how they should discharge the responsibilities committed to them by the federal government” (id. at p. 1307). It may be that certain elemental precepts of state law—for example, state constitutional provisions that create a legislature and define its membership—must remain operative when a state legislature exercises federal functions. But this case does not concern the character or legitimacy of the Legislature as the duly constituted and properly functioning legislature of California. This case concerns the source and validity of a substantive power that the Legislature seeks to exercise, and as this court has recognized, “a state may not, through restrictions imposed by state law, interfere with a state legislature's ability to fulfill its function and responsibilities as contemplated by Article V of the federal Constitution.” (Bramberg, supra, 20 Cal.4th at p. 1058, 86 Cal.Rptr.2d 319, 978 P.2d 1240; see Leser, supra, 258 U.S. at p. 137, 42 S.Ct. 217 [a state legislature exercising “a federal function derived from the Federal Constitution ... transcends any limitations sought to be imposed by the people of a State”].) Accordingly, even if state law does not authorize the Legislature to submit Proposition 49 to the electorate, the Legislature may do so as an exercise of its implied power under article V.
II.
The analysis above affirms the Legislature's broad latitude to act in the unique context of amending the federal Constitution and amply justifies today's narrow holding. Yet the court's opinion rests not only on the Legislature's role under article V but also on “the Legislature's power to investigate.” (Maj. opn., ante, 196 Cal.Rptr.3d at 757, 363 P.3d at 649.) This doctrinal move unnecessarily calls into question the narrowness of today's holding—for if investigation by use of an advisory ballot measure “is permitted as a necessary aid to the execution of other legislative powers” (id. at 740, 363 P.3d at 634), and if an advisory ballot measure is permissible so long as “a nexus exists between the matter investigated and some potential action the Legislature has authority to undertake” (id. at 740, 363 P.3d at 635), then what is to distinguish the validity of an advisory ballot measure concerning a federal constitutional amendment from the validity of such a measure concerning any ordinary issue of public ***792 policy? Although the court expresses no view on that question ( **678 id. at 744, fn. 11, 363 P.3d at 638, fn. 11), the Chief Justice says there is no distinction at all. She would hold that the Legislature may use advisory ballot measures “with regard to any potential action that the Legislature has authority to undertake,” including matters “completely unconnected with any article V issue.” (Conc. opn. of Cantil–Sakauye, C.J., ante, at 775, 777, 363 P.3d at 664, 666.)
I find unpersuasive the court's reliance on the Legislature's investigative power as well as the Chief Justice's expansive view of the Legislature's power to use advisory ballot measures. At the outset, I acknowledge that “[u]nlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature.” (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, 97 Cal.Rptr. 1, 488 P.2d 161.) “The legislature is vested with the whole of the legislative power of the state and may deal with any subject within the scope of civil government unless it is restrained by the provisions of the constitution, and the presumption that the legislature is acting within the constitution holds good until it is made to appear in what particular it is violating constitutional limitations.” (MacMillan Co. v. Clarke (1920) 184 Cal. 491, 496–497, 194 P. 1030.) But limitations on the Legislature's power need not appear in the state Constitution “expressly”; they may exist “by necessary implication.” (Methodist Hospital, at p. 691, 97 Cal.Rptr. 1, 488 P.2d 161.) Below I explain why it is a necessary implication of our Constitution's text and history that the Legislature lacks general authority to submit advisory measures to the electorate. Whether exercising its investigative power or any other power under state law, the Legislature may not statutorily alter the structure of government established by our Constitution.
A.
We previously addressed the issue of advisory ballot measures in American Federation of Labor v. Eu, supra, 36 Cal.3d 687, 206 Cal.Rptr. 89, 686 P.2d 609, where concerned citizens sought to place on the ballot a nonbinding resolution urging Congress to propose a federal balanced budget amendment and directing the Secretary of State to apply for a constitutional convention. We invalidated this advisory ballot measure on the ground that it was not authorized by the initiative power. (Id. at pp. 714–715, 206 Cal.Rptr. 89, 686 P.2d 609.) Observing that the initiative “is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them” (Cal. Const. art. II, § 8, subd. (a)), we explained that a measure that merely adopts a resolution or declaration of policy is one that “fails to adopt a statute.” (American Federation of Labor v. Eu, at p. 715, 206 Cal.Rptr. 89, 686 P.2d 609.)
This precedent makes clear that a citizen-initiated advisory measure asking the electorate whether the Legislature should increase the gasoline tax, for example, would be unconstitutional. The court in American Federation of Labor v. Eu reasoned that the initiative power does not authorize the people to place an advisory measure on the ballot. But upon a moment's reflection, it is evident that our decision suggests a deeper structural principle.
Suppose citizens who support an increase in the gasoline tax qualify the following initiative for the general election ballot: “Proposition X. The People of the State of California hereby enact the following statute: In the next general election, the Secretary of State shall place on the ***793 ballot an advisory question asking the people of California whether the Legislature should increase the tax on retail sales of gasoline by 5 cents per gallon.” If Proposition X were to pass, would the statute it enacted be constitutional? Of course not; otherwise, our decision in American Federation of Labor v. Eu would be easily evaded and reduced to a virtual nullity. But the invalidity of Proposition X does not arise from the fact that it is an advisory ballot measure like the advisory initiative at issue in American Federation of Labor v. Eu. Proposition X is not an advisory measure; it enacts a statute that directs the Secretary of State to place an advisory measure on the ballot at the next election.
The invalidity of Proposition X must be explained by reference to its substance, not its form. Although Proposition X enacts a **679 statute, the statute it enacts asks voters to do something they lack authority to do: to adopt a resolution with no binding legal consequence in their official capacity as the people of California. We recognized this principle in American Federation of Labor v. Eu when we said the provisions of the balanced budget initiative “adopt, and mandate the Legislature to adopt, a resolution which does not change California law and constitutes only one step in a process which might eventually amend the federal Constitution. Such a resolution is not an exercise of legislative power reserved to the people under the California Constitution.” (American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 694, 206 Cal.Rptr. 89, 686 P.2d 609.) In other words, the California Constitution reserves to the people the power to enact laws by initiative or referendum, but it does not reserve to the people the power to adopt nonbinding resolutions.
If Proposition X is invalid, then an identical statute enacted by the Legislature would be invalid as well because “[t]he electorate's legislative power is ‘generally coextensive with the power of the Legislature to enact statutes.’ ” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1042, 56 Cal.Rptr.3d 814, 155 P.3d 226; see Santa Clara County Local Transportation Auth. v. Guardino (1995) 11 Cal.4th 220, 253, 45 Cal.Rptr.2d 207, 902 P.2d 225; Legislature v. Deukmejian (1983) 34 Cal.3d 658, 675, 194 Cal.Rptr. 781, 669 P.2d 17.) In resisting this conclusion, the court cites our recognition that “ ‘the reserved powers of initiative and referendum do not encompass all possible actions of a legislative body.’ ” (Maj. opn., ante, 196 Cal.Rptr.3d at 753, 363 P.3d at 646, quoting American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 708, 206 Cal.Rptr. 89, 686 P.2d 609.) But we made that statement in the context of explaining that the Legislature, but not the citizenry, has the authority to adopt or reject “a resolution which merely expresses the wishes of the enacting body.” (American Federation of Labor v. Eu, at p. 708, 206 Cal.Rptr. 89, 686 P.2d 609.) Nothing in American Federation of Labor v. Eu suggests that the Legislature has authority that the citizenry lacks to place an advisory measure on the ballot.
Distinguishing Proposition X from its legislatively enacted twin would require us to hold that our state Constitution does not authorize the citizenry, on its own initiative, to vote on an advisory measure, but does authorize the citizenry to do so when directed by the Legislature. Yet it seems dubious to say that our Constitution privileges the ordinary lawmaking process over the initiative qualification process as a gatekeeper for the people's exercise of their putative advisory voice. After all, the Legislature is the agent of the people, not the other way around.
***794 As I explain more fully below, the infirmity of Proposition X is not that the electorate, as opposed to the Legislature, has authorized the electorate to vote on a resolution. It is that the people, having reserved to themselves only the powers of initiative and referendum while vesting in the Legislature all other “legislative power of this State” (Cal. Const. art. IV, § 1), have no constitutional authority to adopt a resolution. Such authority cannot be conferred by statute, whether enacted by the people or by their representatives.