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.