[EL] Moot single-subject question, I haven't been able to stop thinking about

[Thomas J. Cares]

Thanks, I will try to access it through a library, when I have a chance (as
it doesn't appear otherwise available freely).

Perhaps Dan's article answers this, but what I'm really wondering is if the
federal constitution can interact with the single subject rule (or vice
versa), whereby part of an initiative can violate the U.S.C. because its
passage is predicated on it being within a certain subject.

In Scalia's 1986 confirmation hearings, for example (and maybe not the best
example), he had a back-and-forth with then-Sen. Biden about whether
statutes prohibiting lying on a sidewalk might be unconstitutional -
violating free speech - because lying on a sidewalk might be part of a
public protest or otherwise be communicative.

Scalia's response, in essence, was that a general rule prohibiting lying on
a sidewalk - indiscriminate of the purpose - could be constitutional, but a
rule that only prohibits lying on a sidewalk, as part of a protest (but
would allow it if an individual simply wants to nap), would not be
constitutional.

So, if California passed an initiative that set forth reasonable
regulations on large protests in public spaces, and the initiative also
implemented a fine for lying on a sidewalk for any reason - while Scalia
could presumably find them constitutional separately, might jurists, of the
same view he expressed at his confirmation hearing, find it
unconstitutional if a state passes them together under the pretense that
they are the same subject?

Or, essentially, can the single subject rule postulate the purpose of part
of an initiative such to render it unconstitutional, given its purpose?


Thomas Cares

On Sat, Dec 8, 2012 at 8:01 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  The courts also upheld the California Political Reform Act against single
> subject challenge, which was much more complex than Prop. 32.  I don't
> think a single subject challenge to Prop. 32 would have stood a good chance
> in California---in other states I cannot say.
> Dan Lowenstein's articles, which Ed Still cited, give the full history of
> the single subject rule in CA, and its application to a wide range of cases.
> Rick
>
>
> On 12/8/12 12:16 PM, Richard Winger wrote:
>
>   California's single subject rule is fairly loose.  The State Supreme
> Court upheld Prop. 13 (of 1978) against a single-subject challenge, even
> though the measure lowered county property taxes and also required a
> two-thirds vote for the legislature to raise any taxes.  Those don't seem
> like single subjects to me, but the measure survived a court challenge.
>
> Richard Winger
> 415-922-9779
> PO Box 470296, San Francisco Ca 94147
>
> --- On *Sat, 12/8/12, Thomas J. Cares <Tom at TomCares.com><Tom at TomCares.com>
> * wrote:
>
>
> From: Thomas J. Cares <Tom at TomCares.com> <Tom at TomCares.com>
> Subject: [EL] Moot single-subject question, I haven't been able to stop
> thinking about
> To: "Election Law" <law-election at uci.edu> <law-election at uci.edu>
> Date: Saturday, December 8, 2012, 10:45 AM
>
> This question is completely unnecessary, and perhaps very complex to boot.
>
>  Perhaps it should just be ignored.
>
>  But for some reason, I have not been able to get it out of my head for
> the last 3 months or so:
>
>  *Might California's Prop 32 have violated the single-subject rule?*
>
>  The initiative would have prohibited corporations and unions from giving
> directly to candidate campaigns.
>
>  But then, it also would have prohibited funds derived from "automatic
> deductions" of employees' pay checks (by unions or corporations) from being
> contributed to PACs.
>
>  *My question, then, is, if the latter is in the scope of campaign
> finance reform, wouldn't it be unconstitutional under Citizens United.*
> *
> *
> *Then, if it would only be constitutional under the scope of employment
> law, would the initiative then violate the single subject rule?*
>
>  This might seem to adopt too strict of an interpretation of the single
> subject rule, but probing into, I consider that
> 1) Under Citizens United, the initiative could not have also prohibited
> corporate contributions to PACs from their treasuries; and
> 2) The only way, under Citizens United, that you could justify this
> prohibiting PAC contributions from union treasuries, is to take it as a
> matter of employment law. Under Citizens United, it could not be
> constitutional to impose this restriction on unions for the purposes of
> campaign finance reform.
>
>  Therefore, it seems to me that Prop 32, had it passed, may very well
> have been in violation of the single subject rule.
>
>
>  I apologize if this has already been pondered on the listserv before.
> Also, with its moot-ness and unusual-ness, it may be fit for us to ignore
> the question. However, I have not been able to shake this curiosity for the
> last 3 months, so I thought maybe I should just post it, and see if anyone
> wants to share their take on it.
>
>
>  Thomas Cares
>
> -----Inline Attachment Follows-----
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<http://mc/compose?to=Law-election@department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> _______________________________________________
> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20121210/d9edd58b/attachment.html>