July 5, 2009
Historically, the initiative process sought to remove the barriers that were prohibiting citizens from participating in government. In part, these barriers were inextricably bound to corruption. Those in political power wanted to preserve their positions; therefore, they did everything within their means to insulate themselves from others. Progressive reformers, thus, targeted “politicians, parties, interest groups, and political institutions” in an attempt to restore the public’s confidence in government as well as remove barriers to political participation (Schacter, 1995, 113). The overarching aim of the initiative process is to strengthen democracy, especially in the form of confidence and participation. Many legal scholars frame the importance of the initiative process in this manner: “The mechanism gives popular mass movements the ability to develop legislative vehicles and secure a date for verdict from fellow citizens. In a manner unmatched in any nation…the initiative is an expression of confidence in ourselves, a reaffirmation of the confidence of the Framers: that free men and women can govern themselves” (Schacter, 1995, 112). The reformists were seeking a way to remove the undue influence of political elites and special interests so that American democracy would once again belong to the people.
Reinserting the decision-making power of the citizenry in a new way became the remedy: “turning legislative decisions over to the people seemed one clear way to do this” (Mattson, 1999, 22). The intended effect was that “[b]ecause the initiative process allowed citizens to register their opinions by direct votes, it promised to be a valuable alternative to representative government, which had become tainted by the influences of privileged interests and partisan politics” (Du Vivier, 2007, 1046). Ultimately, the initiative process was deemed the proper vehicle to restore representative democracy because it left the fate of democracy in the hands of its citizens. Overall, the Progressive era was
[a] major period of systemic reform of local, state, and federal government institutions, culminating in the creation of a national administrative state. Progressive reforms served to create hierarchical bureaucratic organizations to prevent political corruption and restore public trust in government. By changing political institutions, Progressive reforms reshaped American democracy both substantively and procedurally and were critical in adapting government institutions for a new industrial economy. (Tolbert, 2003, 470)
The Progressive reforms swept across multiple levels of society and government. The reforms sought to minimize, if not remove, the high levels of public distrust, frustration with the political process, and, in many ways, outright alienation created by political bargains. Overall, these reforms reoriented the political power structure so that citizens again were the focus of the government and, simultaneously, fostered a newfound trust in government itself.
July 5, 2009
Growth and development, in general, contribute to the diversification of society itself; this creates a dilemma for both political culture and legal theory alike. Specifically, each must meet the demands of an increasingly varied populace, yet the manner in which they do so becomes constrained by the multiple demands placed upon them. A gap results from the inability of law, legal theory, political institutions, and individual actors to meet the public’s needs. The result is that law and society lag behind society, unable to meet its multifaceted demands. Law and theory, thus, have to be overhauled or augmented in order to comport with society and its needs. In some cases, mechanisms outside of simple representative governance are invented to encourage growth and stability in society. The creation and adoption of the initiative process (also referred to as direct democracy) during the Progressive Era of American democracy exemplifies the need for the creation of a tool, outside typical governance, to benefit society and meet citizen desires.
The Progressive Era of American democracy was plagued by corruption. In the Progressive Era (roughly mid-1890s to 1917), political machines developed in response to the vacuum created by unmet, varied public desires. In large part, these machines aimed to meet their own desires while, minimally, fulfilling those of society in general. In many ways, the political machines perpetuated the cycle of citizen needs not being met by government. Not surprisingly, corruption or the perception thereof, especially in the form of quid pro quos (bargains), became rife across multiple levels of society—in particular, government. Progressive reformers, as a result, attempted to curb this corruption through a series of changes in law and political and legal theory to better society’s current and future state. As a result, a method was sought to redefine the boundaries and theories of law itself to be consistent with the desires of the public.
Progressive Era reforms emerge as an attempt not only to quell political corruption, but also to simultaneously restore the public’s confidence in government; it should be noted that public confidence is vital to the U.S.’s form of governance, republican democracy. Collectively, the Progressive Era reforms that are pertinent to the issues at hand—corruption and ineffective governance— are referred to as the initiative process. The advent of the initiative process establishes the foundation of the manner in which reformists hoped to reconcile public confidence and political corruption, all the while, reinvigorating government. The initiative process, loosely understood, is a series of tools for the citizenry to effectuate and realize their desires. Specifically, these tools are the initiative, referenda, and recall. The initiative and referenda, although different in the manner in which they arrive on a public ballot, are single-issues that are subject to a vote by the public. The recall is subjecting either an already completed election or a vote taken in the legislature or elsewhere back to electorate—the equivalent of a voting mulligan. It also remedies past actions taken by the legislature with which the public disagrees. In short, the initiative process allows citizens to create law to meet their desires and remove unwanted or undesirable laws, actions, or elected officials. As a result of the initiative process, citizens themselves have the ability to begin this process with little intrusion by the government. An underlying goal of the reform movement is that the citizenry’s psyche is meant to be affected such that they are empowered which, hopefully, increases their participation of government. The ballot initiative process signals a significant change: citizens now can seek changes in the status quo, irrespective of non-responsive or ineffective representation, to realize their needs.
As contributions to candidates begin to wane under the pressure of court opinions, political actors reassert themselves in newfound ways to ensure the fulfillment of their political desires to the detriment of ordinary citizens; the last 30 years of American political history corroborates this. After reviewing the last three decades, scholars contend that “[w]ell-funded interests can influence the recruitment and selection of candidates; they can manipulate the salience of issues that will dominate the public agenda; and they can shape other conditions of political engagement in a way that less wealthy people cannot” (Garrett, 2002, 6). A California study showed that sixty-eight percent of all initiative campaign contributions come from lobbying interests (Du Vivier, 2007, 1048). Furthermore, spending on initiatives in California alone has spiked from “$25 million in 1982 to around $390 million in 2005” (Dempsey, 2007, 126). Although there is not a guarantee that money increases the likelihood of success for a particular initiative, it does play an important role “in exposure and how the public perceives an issue” (Du Vivier, 2007, 1048, 1049). Considering that political elites and veiled political actors deceptively fulfill their interests without the public knowing, the power of money allows them to shape the perceptions of an uninformed public. The U.S. Supreme Court’s rulings, limiting disclosure and transparency, have provided a fertile ground for corruption to exist with deft political actors exacting their interests unbeknownst to the general public.
Even more troubling is that elected officials are inextricably bound to the initiative process. In fact, their political future depends upon it: “Now, elected officials face strong incentives to treat ballot measure contributions with almost the same importance as reelection contributions, in part because the candidate’s popularity, agenda, and political power can be heavily influenced by how those contributions are spent and which initiatives pass or fail” (Dempsey, 2007, 124). To contextualize this, consider the extensive use of the initiative process by Governor Schwarzenegger to advance not only his own agenda, but also his political financiers. The damage is that a hopefully corruption-free tool for the citizenry to use to achieve their desires becomes infused with special interests and politicians alike; this is precisely what the Progressive era reformers sought to avoid. Schwarzenegger has been able to amass large contributions for his platforms because of the lack of campaign ballot issue contribution limits or other forms of government regulation (Dempsey, 2007, 125). As a result, candidate-controlled campaign ballot measure committees now “serve as major conduits…to put huge contributions into the hands of elected officials for use in promoting political agendas” (Dempsey, 2007, 126). California law limits donor contributions to $22,300 for governor’s election bid (Dempsey, 2007, 125). On the other hand, donor contributions are not limited with respect to the initiative process (Dempsey, 2007, 125). The result is that “a few hundred major corporate donors and wealthy individuals” gave Governor Schwarzenegger “an extra $26 million for his agenda that would have otherwise been barred” if donated for his election (Dempsey, 2007, 148). Thus, the reality is that the Governor utilizes the process to advance his own agenda, free from government regulation in many ways. Now, roughly three-quarters of Californian voters call for change in the initiative process; it is a function of big interests, leaving ordinary citizens in the fray (Dempsey, 2007, 125). It is disconcerting that candidates like Schwarzenegger no longer seek political contributions to his campaign but the initiatives upon which he is running.
In some respects, the initiative process allows a politician a second bite at the apple when they have lost in other mediums. It is quite clear that initiative process is now attractive to politicians because it provides them access to unlimited, monetary contributions. It is further unsurprising then as politicians continue to use the initiative process that citizens become alienated in the process.
June 22, 2009
I know that I said that I would discuss the normative implications of judicial behavior, but, in some respects, feel that a different topic is better suited.
Much of my research evaluates public opinion and how the Courts incorporate it into their decision-making process. The reason, simply put, is that the Court’s have established that there must exist an appearance or actuality of corruption in order to justify regulation of the ballot initiative process; this is particuarly stringent in the context of regulation of contributions to ballot initiatives (money is a form of speech which implicates First Amendment rights), and not to the same extent in the form of disclosure regulations (although current cases are starting to controvert this previously established research point).
Before I delve further into this topic, let me contextualize the dilemma caused by Court opinions which, possibly, is to the detriment of society. The United States Supreme Court has struck down regulation of ballot initiatives to such an extent that individuals are allowed to contribute unlimited amounts to particular ballot issues up for voting. In constrat, the United States Supreme Court allows for the regulation of contributions to individuals, candidates for public office. Overall, the Court’s logic is that there is not a singular person to be corrupted by the ballot initiative process like in a candidate election; the existence of a quid pro quo is not likely and, therefore, does not justify the Court allowing regulation of First Amendment rights to continue in the ballot initiative process. This decsion to which I refer demarcated the differences between ballot initiatives and candidate elections was made in the late 1970s. Notably, the Court did not delve into whether or not the public desired regulation of the ballot initiative process from the standpoint that corruption existed. Once this assumption was made, however, the political environment has changed. The Court did, however, lay out an exception in this seminal case in the 1970s; the government could regulate the ballot initiative process in the form of limiting contributions if, and only if, the appearance of corruption was shown to exist and the government’s regulation was narrowly tailored to satisfy that end.
During the course of my research, no case that involves regulation of individual contributions has been allowed. Furthermore, it is, unfortunately, less apparent what the court accepts in the form of evidence and regulation in the ballot initiative context. The amount of contributions to initiatives has skyrocketed, especially in comparision to money given to candidate elections; in California alone, the amount givern aggregately given to ballot initiatives was in the twenty million dollar range, but now is the mulitple hundreds of millions of dollars. In a given election, nearly $400 million was spent on ballot initiatives; this rivals, if not overwhelms, the amounts given to candidates for the U.S. Presidency.
June 22, 2009
The Gavel on the Initiative Process: Hubris or Adequate Balance?
The courts play an integral role in the regulation of the initiative process. In this area of campaign finance law, the Court’s willingness to support challenged regulations is based, in large part, on public perceptions of corruption. It is clear that the appearance of corruption or the public’s perception thereof is central to the Court’s calculus when deciding on the constitutionality of matters in this context. Yet, it is unclear what satisfies this corruption standard. Despite attempts to clarify this standard made by prior research, recent court opinions have undercut their efforts. Overall, this paper establishes a more current conceptualization of the corruption standard and, further, what satisfies the Court’s demands so that the empirical realities of regulation are more understood.
Underlying the overarching purpose of this research is the demand for an evaluation of the role of public opinion, especially with respect to the judiciary. In part, evidentiary burdens are assessed so it is made clear when public opinion data can be considered by the Court. Furthermore, once that public opinion data satisfies the judiciary’s evidentiary demands, it is important to understand how the Courts use and respond to public opinion. The normative and empirical behavior of the judiciary’s response to public opinion is, thus, considered. This provides for a more holistic understanding of the ballot initiative context in order to test the assertion that: the Court’s decisions fail to appreciate the empirical realities of the ballot initiative context and its regulation, particularly in terms of public opinion.
June 16, 2009
Karl Giuseffi U. Discover Scholar Application Narrative
The Gavel on Ballot Initiatives: Hubris or Adequate Balance?
Introduction and Research Purpose
Through the power of judicial review, the United States Supreme Court is primarily responsible for deciding whether regulations on campaign finance are constitutional. Campaign finance regulations typically infringe on First Amendment rights, and so the only way the Court allows this encroachment is if the state has a compelling interest to justify the regulation, and if that interest is narrowly tailored to the means used to pursue it.
In the area of campaign finance law, the Court’s willingness to support challenged regulations is based, in large part, on public perceptions of corruption. While the Court has supported campaign finance limits and disclosure requirements in candidate elections, it has not been as supportive of the same in the ballot issue context.
The project I propose for the U. Discover Summer Scholar Program focuses on the tension present in the Court’s treatment of candidate and ballot issue elections. My concern is that the Court has not fully considered the empirical realities of ballot issue politics, including public perceptions of corruption and influence (particularly) in initiative elections. These observations, in my view, need to be more fully investigated and considered in the First Amendment jurisprudence that impacts the treatment of citizen interests and election outcomes in this area.
In short, I propose to examine public opinion and campaign finance contributions data with the regulatory questions identified by the US Supreme Court. The goal is to determine whether in ballot issue politics public concerns for corruption are consistent with judicial views of corruption. With this data validly matched to the constitutional questions at issue in ballot election regulation, I hope to provide a sound basis for future court review of individual rights and liberties in this area of law. It is my belief that such analysis is missing from the current case law in this area, and that its introduction will have an important impact on the way judges and citizens view public regulation of private contribution behavior.
Broadly, direct democracy creates a means by which the public can externally check representative institutions and increase voter confidence and turnout in the electoral process. The idea of direct democracy emerged from the Progressive Era of American history. This period of time was plagued by political corruption, political machines, and party bosses in state and national elections. The direct democracy movement, in large part, represents an attempt to equalize citizens’ political power, to eliminate concentrations of power, and to reinvigorate the political process.
Many commentators in research literature have concluded that this institution does not live up to the normative goals of its earliest proponents in the US. The participation of well-funded interests and political elites in the state initiative and referenda elections observed in some of the research literature points to the same concerns for corruption that were at issue when these reforms were initially introduced in the US. Furthermore, the latest research in this area has begun to show that initiative process is being used by candidates and other political elites to advance their agendas. Unfortunately, the courts have not taken account of these conditions in their treatment of the issues. The US Supreme Court, in particular, has maintained that the corruption (or appearance thereof) in candidate elections is not possible in ballot issue elections where there is no person or individual to corrupt. As a result, the Court has invalidated state regulations imposing contribution limits in ballot issue contests. The research proposed here attempts to examine this determination through carefully designed, empirical research. If it can be shown that candidate and elite behavior in the ballot issue process is similar to behavior in
candidate elections, as suggested in several anecdotal accounts of ballot issue politics, then the Court’s treatment of these issues may be erroneous. The plain fact is that the Court has not engaged in empirical research of elite behavior or voter confidence. Both are necessary to properly inform judicial decisions in this area and, moreover, to better reflect current conditions in state ballot issue elections.
My time in the U. Discover Program will focus on the creation of a comprehensive literature review of the regulation of both ballot issue and candidate election campaign finance. I will further use this time to uncover appropriate public opinion and campaign contributions data to include in my Senior Honors Thesis research next academic year. If time permits, I would also like to engage in some initial data analysis of the impact ballot issue politics have on voter confidence and participation. These tasks are essential to advance this research and determine whether my expectations are grounded in empirical reality. If it is found that (1) citizens hold the concern for corruption in the ballot issue process and (2) that elected officials use the ballot issue process to advance their legislative agendas, then it is essential to disseminate this research to state and judicial policymakers before a further erosion of voter confidence occurs.
Relevance to Program
The U. Discover program gives undergraduate students the opportunity to conduct scholarly research under the tutelage of a faculty sponsor. My project represents a significant act of scholarship in that it aims to clarify the manner in which the law addresses ballot initiative regulation, and, further, will assess whether the contemporary public perception meets the corruption standards set forth by the courts. The project will contribute to knowledge of states and federal regulation of ballot initiatives. As a part of U. Discover, my research goals will be furthered through program funding, faculty insights/feedback, and the training and support needed to further develop my research skills.
Over the course of the last year I have worked with Professor Braunstein on related topics, so I have some experience in this area of study. This U. Discover project represents my particular area of interest: the confounding legal environment in which ballot initiatives are regulated. The questions that I seek in this project will contribute to my prior research as well as my Honors thesis. Importantly, it is my belief that these proposed research questions will contribute to a more holistic understanding of the ballot elections context, especially because they are not answered by current research. I have the background and knowledge—including prior research experience and education on proper research methods—to be able to make this project successful under the guidance of Professor Braunstein.
At the close of this research project, I hope to have a publishable paper on ballot issue regulation that provides clarity to the academic and political community alike. It is my sincere hope that this paper will someday be used by judges grappling with the challenges facing this area of First Amendment Law.
 The term regulation includes a wide variety of ways in which the state may assert itself. These include regulating campaign finance in the forms of: disclosure, transparency, and contribution limits, among others.
I am in the process of assessing, generally speaking, the normative values of the judiciary and, more specific, the normative values of the judiciary within the ballot initiative context. The following is a thumbnail of some of the thoughts that I am entertaining while undertaking research on this facet of my project. I hope that you find it intriguing. Below, you will find a normative undertaking of judicial activism and other norms that govern the judiciary. I attempt to disassemble some of them in the hope of obtaining a broader, more proper understanding of the judiciary. Ironically, I hope that you find it confusing so that it perplexes you as well. In confusion, I believe, there is progress that can be achieved by groups of people such as ourselves.
The public and government alike place a premium on justices following the letter of the law. Yet, despite when decisions have little, true legal foundation, the public and government do not criticize the judiciary at times even though they may be “activist” in nature (activism is broadly understood as decision-making outside the letter of the law). Herein lies the difficulty: why are some decisions deemed activist and others not? More important, what forces or influences help shape the use of activism and, tangentially, are they proper within our current framework of government?
For instance, let’s consider the Second Amendment (the so called right to bear arms) with particular attention paid to individual rights. Prior to the District of Columbia case this last year, no singular U.S. Supreme Court case had set forth the language or implicitly demonstrated that there was an individual right to bear arms. It was, however, assumed that such a right existed. Now case law establishes that there is an intrinsic, implied right for individuals to bear arms. Does this constitute judicial activism? Broadly, judicial activism claims on some level that justices created law or went beyond what the law at the time held. Put another way, the justices found a way to legally claim that something exists beyond what law, at the time of the decision, establishes. In my opinion, this is judicial activism. Please note that I am trying to narrow the meaning of the word, judicial activism,because it is rife with ambiguity in definition, which, certainly, is perpetuated by application. At this time, as a native South Dakotan and gun owner myself, the culturally ingrained aspects of myself are screaming for me to assert that this is not activism; mainly, this reaction is generated because such action would comport with my beliefs, although not necessarily the facts. Therefore, judicial activism or the claim thereof in some way is linked to my political beliefs and behaviors.
This contradiction is further contextualized with the so called right to privacy, which also is not explicitly in the U.S. Constitution. No court case, currently, points to the language of the U.S. Constitution to assert that there is a right to privacy; instead, this right is broadly asserted through court decisions. As a side note, I hesitate to use the word “right” because it is more proper to assume that the government assumes an obligation to observe some level of individual privacy, rather than a constitutional demand, strictly speaking, which is compelled when an individual right is at stake.
So why have I just put forth these examples when they, ultimately, have little connection to the ballot initiative context? There are multiple reasons for this; all of which, I hope to expose in this blog. Starting simply, in the aforementioned decisions there is an underlying norm or, rather, factor that appeases the public. This factor exerts such an influence that few in the public purport judicial activism; people become enveloped by this factor to the extent that they do not react until it contradicts personal beliefs that are, in some way, impacted by this factor. In part, it is my belief that this underlying factor is or is somehow linked to the political context–the multifarious aspects which help form the status quo– which governs the manner in which the public not only perceives, but also reacts to certain judicial decisions. Simply put, in each of the examples, the public does not disagree with the decisions of the Court or, at least, few do. This is because of the political context. The decisions, in large part, do not contradict or run contrary to political context and the beliefs held by citizens therein.
This discussion prompts the question of whether or not there is such a thing as judicial activism. Judicial activism exists by definition irrespective of its elasticity; however, judicial activism loses its importance for two reasons: judicial activism is used during partisan political battles, and judicial activism is necessitated for purposes of government satisfying public needs. Judicial activism, any more, merely is used by those who disagree with the decisions of particular courts. In particular, politically-charged issues tend to provoke the use of judicial activism (consider this in the context of California and the litigation surrounding Proposition Eight, gay marriage). Let’s consider the issue in a different manner. Jurisprudence calls upon justices to incorporate prior decisions and other factors to make decisions on the issues before them in particular cases. This incorporation alone, ignoring legal and political justification, leads to the creation of law: it is new law, irrespective if it deviates from prior law or, ultimately, supports prior decisions. Judicial activism argues against judges making or creating law. Simply put, their decisions have the power of law until it is controverted by another branch of government, a higher court, or the people of a state or on a national level. Thus, the concept of judicial activism is flawed in that it assumes that there is some static quality to law, wherein law remains the same when judges follow its lettering. Yet, the political context demands that the law remain fluid, attempting to follow the changes of society, if not directly contribute to them (think of Brown v. Board of Education, which, certainly, constitutes judicial activism yet it added to society in an important way).
The concept of judicial activism and its use, importantly, fail within the context of government functions. Since roughly the 1920s, the United States government is increasingly burdened by increased demands and large expansions of the types of demands of its increasingly diversified population. I am not claiming that this is a bad thing. Rather, the increased and expanded demands placed upon government have called for a unified approach of the three branches of government to fulfill their obligations to the public; this is referred to as the shared powers model of governance. No longer can one branch alone bear the burdens placed upon it, especially to the extent that it still satisfies the polity. Broadly, the trend toward shared powers explains the expansion of the executive, judiciary, legislative branches as well as offshoots of those bodies such as the EPA (Environmental Protection Agency). Judicial activism, although conceptually devalued, is needed. Other branches of government have shifted power and obligations to the judiciary so that they all may work toward serving public interest. Judicial activism is, therefore, helps meet the demands placed upon government. No longer is merely defining the law enough; meeting the demands of the public as well as the individuals before the courts is a necessary part of the calculus and function of the courts.
In sum, judicial activism is shaped by the political context, the status quo. Multiple demands are placed upon government and the other branches, willingly, have deferred obligations and power to the courts to meet those demands.
The obvious next question then, of course, is whether or not, based on norms and demands on government, the court makes public policy and, further, whether or not they are supposed to. This is the subject of my next blog.
It is difficult to ascertain the manner in which or the extent to which public opinion shapes, affects, or is incorporated in the decisions of the judiciary. So difficult, in fact, it took a research librarian and myself a couple of days to even find proper research queries–much to my dismay– to yield any pertinent data or information on the subject. Beyond difficulties in obtaining relevant research literature, the literature itself is rife with complexities and, intriguingly, contradictory beliefs and research methodologies; nevertheless, these studies reach similar conclusions. This has, overall, made my research on the nexus between public opinion and the courts exceptionally difficult.
Much debate is present in research literature, focusing on how, if at all, public opinion shapes the decisions of the U.S. Supreme Court and other appellate courts. The way in which researchers attempt to demonstrate and measure the connection between public opinion and the courts varies. In part, methodology itself is subject to scrutiny. This leads to increasing variation in the research literature. Most studies attempt to measure the courts’ tendency to reach more liberal and, conversely, conservative decisions. Despite the contradictions and differences in approach, marked similarities exist in the findings of the research. Public opinion does, in fact, have an impact on the decision-making of justices. The extent to which public opinion, however, influences the decision-making of the justices is not clear. Within this context, on the other hand, it is clear that the political context of the U.S. has a distinct impact on the decision-making capacity of justices. The political context includes two important elements that influence the court’s’ calculus: public mood and social mood. The following is an imprecise definition of both terms but, nonetheless, fulfills the working purposes of this journal. The public mood is loosely understood to be linked to economic perceptions of the public, and social mood is the demand (or lack thereof) for social progress which is manifested in various ways.
Another important facet is that when a unified government exits, partisan control of Congress and the Executive, public opinion and a justice’s individual preferences are not likely to influence the decision-making of the justices. Rather, when power struggles exist in Congress and the Executive or between those bodies, public opinion is relied upon in the sense that it supports the manner in which a justice reaches their decision, despite it possibly being at odds with the desires of the two other branches of government and those in power therein.
May 31, 2009
The Inaugural Post
The information that one will find on this blog regards the ballot initiative process. In particular, it will detail my journey and thoughts regarding the process as I conduct research on various facets of the subject area.
The United States Supreme Court is hesitant when considering claims regarding the ballot initiative process. This hesitancy invariably reflects the tension between individual and group’s First Amendment rights and the government’s interest in regulating the ballot initiative process in order to further and strengthen democracy. Although the Court seems to allow for regulation in the form of disclosure, the Court strikes down any other form of regulation within the ballot initiative context. Beyond disclosure, other forms of regulation fail to surmount the burdens that must be met before they are justifiable in the eyes of the Court. Nevertheless, as the Court continues to disallow regulation on the part of state and national government, it fails to provide any indicia for those attempting to regulate the process. Put another way, it is quite difficult for anyone to ascertain what forms of regulation and, further, in what manner would be allowable according to the Court. The lack of clarity is further perpetuated by a multitude of judicial opinions rendered on the topic which, of course, are not necessarily harmonious with one another.
The utter confusion on the various decisions opined by the Courts make it clear that one must review recent opinions. Research literature provides much insight and guidance but, nonetheless, falls short when attempting to account for the most recent opinions. Right now, I am attempting to understand the differences, however nuanced, between recent opinions.
My initial inclination based off of reviewing the most recent case, Wisconsin Right to Life v. FEC, is that the changes on the Supreme Court certainly may affect, if not have already altered, the future of campaign finance regulation. This alteration is in the form of further minimizing acceptable forms of regulation of the ballot initiative context. In essence, this most recent opinion may upset the already indelicate balance struck by case law with respect to the ballot initiative process. This is worrisome, in the sense, that research literature that offers guidance may now be outdated.