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Against Proposition 32


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Many conservatives are excited by California’s Proposition 32, and indeed the legislation has much to recommend it. Under Proposition 32, any money that unions spent on politics would have to come from voluntary contributions, rather than automatic dues deductions from members’ paychecks. This would be especially welcome in the public sector, where unions essentially transfer taxpayer money directly into their own coffers — and then use that money to elect the officials who “negotiate” with them. The law would also prevent government contractors from donating to the politicians who award their contracts.

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However, these are not the only changes Prop 32 makes. In an effort to make the measure appeal to a mostly left-leaning state, the law’s drafters made serious compromises — compromises that make Prop 32 a net negative for liberty. Specifically, the measure would ban all donations to local and state candidates from unions and corporations. This is an unacceptable limit on political participation, and we regretfully urge our Golden State readers to vote no when they head to the polls in November.

The act of giving money to candidates is a core element of our political process — one that gives little-known challengers the resources they need to face down incumbents, and one that Americans should treasure. Further, political participation does not become less important when individuals join together and act as groups, including corporations and, yes, unions.

Prop 32 is also of questionable constitutionality. In Citizens United, the Supreme Court ruled that corporations and unions have a First Amendment right to spend money on political communications. The Court was entirely correct: The right to speak entails a right to spend money on speech when necessary. To borrow an analogy from constitutional scholar Eugene Volokh that the Left will understand, it would be inconsistent with Roe v. Wade for a state to leave abortion legal but ban the act of paying for abortion services. (The difference being that free speech is actually in the Constitution.)

As Volokh also notes, there are important differences between paying for political speech specifically (e.g., purchasing TV time) and donating directly to candidates. It is dubious to call the act of giving money a speech act in itself (otherwise bribing a police officer would be a constitutional right); candidates do not spend all of their money on speech; and political donations sometimes function as bribes, which the government has a legitimate interest in preventing. But there is at least a case to be made that a complete ban on political donations by certain groups cannot be squared with the First Amendment.

Many conservatives understandably smell blood after their recent victories against union abuses. We should seek to consolidate and expand these victories. But in doing so we should not damage the political process.



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