Contextualizing the Seriousness of this issue
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.