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.


15 Responses to “Contextualizing the Seriousness of this issue”

  1. Katie Graves said

    Your blog is very impressive. It sounds like you’ve been finding an immense amount of useful research. Have you been using an “human” sources for your research, or have you only been utilizing readings? What got you interested in this topic? Do you have any specific ballot initiatives that you’re interested in?

    • karlgiu said

      Thanks for your comment, Katie. There is a human component to this research that, most likely, will be unable to be completed during the time frame of U.Discover. However, it will be included in the project as a whole. Because citizens determine the perception of corruption standard set forth by the U.S. Supreme Court, I will be using data from South Dakota to assess their perceptions of corruption.

      I am using many readings. Although they are readings, they are, in fact, empirical studies. In social science research like mine, there is typically a normative and empirical component as well as a literature review. My hope is that my U.Discover project, by its end, will include the normative aspects and the literature review.

      I got interested in this topic as I began working as a research assistant for Professor Braunstein, with whom I am currently working on this project. His prior and continued work on this subject drew me in as well as his readily apparent and extensive interest in the topic.

      I do not have specific ballot initiatives that I am interested in per se. The 2006 South Dakota abortion initiative is part of my research but am not sure if it fits into this project. It will fit into my honors thesis, however. Truth be told, nearly all ballot initiatives interest me. The varied political actors involved and the manner in which ballot initiatives are conveyed to the public, each serve to feed my interest.

  2. jbuttke said

    It looks like your project is centered around federal regulation of ballot initiative contributions. I’m wondering if you’ve looked at any cases in South Dakota? It seems like there’s been a few cases that have received a lot of attention-even nationally- for contributions to ballot initiatives. (the abortion ban, namely) How does this case fit into your research? Does it support your overall finding thus far?

    • karlgiu said

      You are quite right in your observations of national movements and even controversy that is evident in the ballot initiative context. There is, however, much federal regulation of this area. Furthermore, this provides much of the impetus behind my research to review and empirically evaluate federal regulation, in particular, because it is such a major influence on states. Because of the constitutional rights at issue in the ballot initiative context, the federal government is the ruling force. Simply put, federal regulations tell the states what they can and cannot do in the initiative context. Accordingly, the federal regulations that I am researching directly impact the states and control the manner in which they can regulation ballot initiatives. For the above stated reasons, I focus on national regulation. It does not necessarily follow then that states are not of concern then.

      All of this national level research will boil down to how it affects South Dakota. Once the standards set forth by the Courts are clear, I plan on testing their assertions with survey research from South Dakota. This will either substantiate their assertions or undercut them. Data from California will also be used, although in a different context–to test the differences between a high-use initiative state versus a low-use, South Dakota. This will further support or debunk current case law.

  3. mlkreport said

    I guess “high-use” is the polite term for what CA does! Being from the Marxist, Depressed State of California, I’m quite well aware of the influence of money on ballot initiatives. As far as I can tell, the person with the most money wins since the voters of CA prefer to vote based on which TV commercial for/against the ballot that they prefer instead of reading the free ballot guide provided by the state that tells the reader not only the text of the law, but the legal analysis of the law by the state AG.

    Unfortunately, one’s reliance on TV versus reading what one is voting for/against is not a crime or corrupt. There really isn’t a reason that I’ve heard so far that would make me think there is any value in limiting or regulating the money that flows into ballot initiatives. Maybe regulating balanced, truthful commercials would be a plus.

    CA has pretty low voter turnout generally. I think if there was no commercials for/against ballots, more people would stay home. They still wouldn’t read the pamphlet. Now, the elitist in me thinks this is a good idea, but people aren’t really served by staying home. I suppose they aren’t served by trusting ballot commercials either! I wonder if a case could be made that by using scare tactics or overemphasizing parts of the initiative while not mentioning other important parts of the initiative could constitute corruption? Everytime I’ve heard some pundit bring up the unbalanced commercials the ballot initiative people are always quick to say “The state sends out the full text to every registered voter”. I guess it keeps coming back to people not wanting to read that darn pamphlet!

    • karlgiu said

      Your point is interesting and well-taken, but misses the crux of what I am studying, although they are linked. I do not seek to establish corruption via the use of money in advertising, although a series of studies since the early 90s outline the pernicious effects of the influence of money in the ballot initiative context–these extend far beyond advertisements, unfortunately. Voter turnout, public confidence, and the increased use ballot initiative context are intertwined. The increased use of ballot initiatives in California has been shown to diminish voter confidence and even turnout.

      My study of ballot initiatives is to determine if a perception of corruption exists and, further, if it is to a degree to warrant regulation in light of Court opinions. Regulation is a loose term. It could mean disclosure laws to limiting the amount of money given to a ballot issue campaign. I seek to play by the Courts rules for what constitutes an appearance of corruption. I want to know if the public supports the assumptions opined by the Courts. Ultimately, I seek to determine whether or not the Courts assumptions meet the empirical and normative reality of politics in the 21st century. In my conclusion, I might offer a normative analysis of what could be done to fix the problem. I like the idea of disclosure but, ultimately, it has to be what the citizenry wants as understood through survey analysis.

      Case studies substantiate that corruption in the ballot initiative process exits, especially in California. Special interests are shown to have “high-jacked” the process. To contextualize this, consider the following: as a former California, you are quite familiar with the tactics of Gov. Schwarzenegger and his predecessor. You know from personal experience that the use of ballot initiatives has skyrocketed in California. Less known, however, is the underlying reasons for the spike in use. Researchers substantiate that political gain is achieved through the use of the ballot initiative process. Governors like Schwarzenegger success is contingent on the success in the ballot initiative context. This environment is ripe for corruption, especially for political elites to effectuate their desires. This process is even more desirable for political elites because no disclosure or limits on the amount of money exist in the ballot initiative context. The rich and powerful can contribute vast sums of money to ballot initiative campaigns that, ultimately, support candidates. This is referred to as “veiled political acting,” which intends to convey the significance of the politically powerful being capable of channeling their money and interests in a hidden manner. In no other context is this behavior considered acceptable or legal. Think of limits imposed on giving money to candidates running for office. Limits exists so that no one person can exert their influence more powerfully than their peers to the extent that it quells the influence of less powerful and wealthy individuals. This does flow over into the ballot initiative context. Certain interests may very well be considered over others due to the strong exertion of influence wielded by the politically elite.

      There is a hydraulic quality of money in politics; political money, like water, must go somewhere. The political elite are quite apt in finding ways to effectuate their desires through monetary influence. At the time the Courts allowed for unlimited contributions in the ballot initiative context, money given to candidates was greatly limited. The timing was, certainly, unfortunate. It may have created a compounding effect of possible corruption in the ballot initiative context. Think of Darwinism here, not necessarily survival of the fittest, but adaptability. Studies prove that contributions and contributors evolved as well as the potential for corruption. If you are interested in this, especially in the California context, please read the collective works of Elizabeth Garrett, one of the foremost scholars in the country on this subject–quite fascinating, really! It might provide an intriguing empirical analysis for your experiences, which are unique.

      • mlkreport said

        I’ll definitely check out Elizabeth Garrett’s work. I know one thing that has been voiced a lot in CA is that people feel their vote does not matter because even when a well-funded ballot initiative is defeated, the losers sue in the courts and the item the people voted for remains not in effect while it winds through the court system for many years. This seems to happen with the most popular initiatives and the most controversial. The rather uneventful ones that didn’t have a flood of money behind them don’t seem to get tied up in court. People feel the courts are being abused by sore losers and their votes are ineffective on things that really matter. Here in South Dakota, I’ve noticed that people seem to feel, especially with the abortion issue, that there are ballot initiatives that just won’t go away and that they just rear up every two years no matter how many times the initiative is defeated. In your research, have you found that people feel that the process is corrupt or just frustrating?

  4. usdneuro said

    Karl, really interesting project. To clarify, you are looking at many ballot initiatives that have been ruled on by the US Supreme Court, evaluating the ruling’s implications nationally, and translate that to its implications on SD? Are you focusing on any ballot initiatives from SD that have been ruled on by the Supreme Court (are there enough cases?)? Thanks–Adam

    • karlgiu said

      I am evaluating the Courts opinions on the regulation of ballot initiatives. I am using them to outline their standards so that an empirical study can be conducted following those standards. South Dakota will be used to establish corruption in a low-use state and then will be offered along with research in California, a high-use state. This will offer a significant level of diversity of political contexts and desires. I cannot tell you what I have found on this medium, but I can tell you that it is certainly surprising. Find me after or before our meeting.

  5. akzalud said

    Your topic definitely sounds very well reasoned and thought out. I know almost nothing about your topic, so keep that in mind when you read my question! What is your intended outcome for the project once you’re satisfied with the findings?

    • karlgiu said

      I would love to have an “intended” outcome and suggest exactly what I think. The validity of my study would be greatly reduced as a result, however. I do not intend to be crass but, rather, to follow the researcher’s plug for question.

      I, certainly, have feelings for what should be done and it is difficult to minimize them. I try to use my different hats, empirical and normative.

      Normatively speaking, I believe that there is a strong desire for regulation to occur in some manner because I believe the values of government and the purpose of ballot initiatives are, otherwise, compromised. The empirical side is proving or disproving that along the guidelines set forth by the Court system.

  6. B. F. Pons said

    I am in the same boat as Amanda, I know only what you are talking about but know none of the specifics or general problems you are tackling. Since you seem to already have comprehensively researched this project, I am curious to what has been the biggest struggle during your research journey and how you have dealt/overcome that challenge.

    B. F. Pons

    • karlgiu said

      Your question flows well to Amanda’s. The biggest struggle I face is ensuring that I minimize my beliefs and protect the validity and reliability of my study. Inserting my personal beliefs is irrelevant, unfortunately (Honors conditions us to speak our opinions, although this is not something foreign to me as you well know). My personal beliefs can be used for commentary in a discussion portion to a very limited extent. Really the only aspect of my self that I have allowed to be inserted is the assumptions which this research aims to test.

      Organizing all of the various sources and the different topics is a struggle as well. I many different aspects that are to be included in this study which are difficult to conceptually organize.

  7. evsociety09 said

    I did a research project on this a couple years ago and am very interested to see what you find. It is indeed hard to believe that there is not corruption in ballot initiatives simply on the money that is plugged into it through shell companies that disappear after the vote. I cannot wait to see what you find and hope that you can shed some light on the issues of corruption in ballot initiatives. Good Luck!


  8. usdneuro said

    Karl–I am looking forward to your presentation on Tuesday. I think it will be really helpful to have the project explained, but from what I read it seems very interesting and ambitious.

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